The Court of Appeal has today handed down judgment in Griffiths v Secretary of State for Work and Pensions.
The central issue in Griffiths is whether an employer’s duty to make reasonable adjustments for a disabled employee is capable of applying to an attendance management policy. Effectively overruling the EAT’s decision in Royal Bank of Scotland v Ashton  ICR 632, the Court of Appeal holds that where an employee’s disability makes them more likely to be absent from work than non disabled colleagues, the duty in section 20 of the Equality Act 2010 may be engaged.
The Court of Appeal rejected the Secretary of State’s contention that the appropriate comparator in a reasonable adjustments claim should be identified by applying the like-for-like test adopted by the House of Lords in Lewisham London Borough Council v Malcolm  1 AC 1399 - an approach that would have entailed comparing the disabled appellant with a non disabled person with the same level of absence, to whom the same sanctions would have been applied. Elias LJ pointed out that the essential purpose of section 20 is to require an employer to take reasonable steps to prevent a disabled person being disadvantaged by a rule that applies equally to non disabled persons. The object of the duty to make reasonable adjustments would be frustrated if it were necessary to compare the disabled person with able–bodied persons who are also disadvantaged by the relevant rule.
Where, therefore, an employee’s disability leads to a level of absence which a non–disabled employee is unlikely to have, the rules of an attendance management policy will put the disabled employee at a substantial disadvantage. The only question then is whether it is reasonable for the employer to adjust the rules of the policy in the particular circumstances of the case.
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