On 27 Jun 2014 12:34, "Andy Heslop" <[log in to unmask]> wrote:

Many thanks Karen/Janet and Di (who responded on the equally excellent OH FB group).

Not sure what the rest of you have been doing, but rightly or wrongly, I have (on occasion) been advising an adjustment of my organisation's poor attendance trigger in certain cases but have always insisted that the sixty four thousand dollar question of "how many more episodes/what percentage increase would be reasonable" be batted firmly back to HR as this is a policy decision. This ruling has clarified the situation for me and I'll be discussing with my colleagues at our next meeting.

Thanks again,

Andy

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From:        Carr Barnes <[log in to unmask]>
To:        [log in to unmask],
Date:        06/27/14 08:57 AM
Subject:        Re: [OCC-HEALTH] Equality Act - Adjustment to poor attendance trigger.
Sent by:        [log in to unmask]

---

Thanks for that Karen...great to keep for reference :)

Care

On 27 Jun 2014 08:19, "Karen Coomer" <[log in to unmask]> wrote:
HI Andy
Griffiths v DWP (May 2014)

The Employment Appeal Tribunal (EAT) was asked to rule on this issue in a case called Griffiths v DWP. Griffiths had post-viral syndrome and fibromyalgia making her suffer from pain and fatigued. The employer’s attendance policy triggered formal action after 8 days absence in a rolling 12 month period. They had built some room for manoeuvre in saying that the period ‘may’ be increased as a reasonable adjustment for a disability.

G triggered a written warning by being off for 62 days. She argued that her illness should be disregarded and the warning withdrawn. She also argued she should have a greater ‘allowance’ of days off before the usual attendance policy would be triggered in the future.

The tribunal ruled in favour of the employer, finding by a majority that as the sickness policy applied to all, there was no question of the claimant being put at a substantial disadvantage by the policy compared to employees without a disability. They also felt that the adjustment sought would not be reasonable in any event because it would create a buffer which would prevent the trigger from being reached. One of the panel felt that a disabled worker was more likely to reach the 8 day trigger point.

The EAT agreed with the majority which will be a relief to employers worried about the extent to which to flex on their usual policies and feeling they will be criticised for tackling absence problems. This fits in with previous case law around the public policy behind the legislation: it is there to protect the disabled employee to return and stay in work, not to encourage absence.

Another case worth looking at is Job Centre plus v Higgins

Following his long-term sickness absence, Mr Higgins’ employer suggested a phased return, gradually increasing to his contracted hours over 13 weeks.  Mr Higgins refused to return unless his employer promised in advance to extend the phased return beyond 13 weeks.  His employer dismissed him.  Mr Higgins raised a claim, arguing that the refusal to agree the extension was disability discrimination, by way of a failure to make reasonable adjustments.

Where a provision, criterion or practice puts a disabled person at a substantial disadvantage, their employer must take reasonable steps to avoid the disadvantage.  In this case, the Employment Appeal Tribunal advised that if an employer grants the reduced hours which an employee says he is capable of working, it is not generally also necessary for the employer to give an explicit guarantee that the phased return will be reviewed in the future.  That said, however, phased returns should be kept under review.  In particular, at the end of the phased return period, employers should consider whether the circumstances at that point in time mean that the phased return should be extended in order to comply with the duty to make reasonable adjustments.

Regards
Karen



-----Original Message-----
From: [log in to unmask] [mailto:[log in to unmask]] On Behalf Of Andy Heslop
Sent: 26 June 2014 22:09
To: [log in to unmask]
Subject: [OCC-HEALTH] Equality Act - Adjustment to poor attendance trigger.

All,

I'm not sure if I imagined it, but has there been a recent posting advising that there was shortly to be a ruling on whether the above should be deemed as a suitable/reasonable adjustment? If so, can anyone refer me to a point of reference please and advise whether the ruling has been announced yet.

Regards,

Andy

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