Can an employer use its absence management procedure in relation to an employee who has been absent due to a disability if this could result in disciplinary action?

Disciplinary action against an employee for absences that are a consequence of a disability could constitute discrimination arising from disability under s.15 of the Equality Act 2010. An employer discriminates against disabled employees under s.15 if, because of something arising from their disability, it treats them unfavourably, and cannot show that the treatment is justified in the circumstances.

If persistent or long-term absence affects the employee's ability to carry out the job, the employer should address this as a capability issue, not a disciplinary issue. The absence management procedure should allow for the consideration of any reasonable adjustments that the employer could make to enable the employee to return to work or to avoid further absences. It may be justified to dismiss an employee if their absence levels mean that they are unable to perform the role and the employer has explored all possible reasonable adjustments, but this will depend on the individual circumstances.

An employer might be justified in taking disciplinary action in connection with disability-related absence if, for example, the employee did not follow the absence reporting procedure (without good reason), or if evidence suggests that their absence on a particular occasion may not have been for the reason given.

In Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216 CA, the Court of Appeal held that the duty to make reasonable adjustments does normally apply where disability-related absence can trigger an absence management procedure, but the question will be whether or not the particular adjustment is a reasonable step for the employer to take in the circumstances. On the facts of Griffiths it was found not to be reasonable for the employer to disregard 62 days of disability-related absence and extend the trigger point under the attendance policy. However, the claimant in Griffiths did not make a claim for discrimination arising from disability. The Court of Appeal emphasised that while an employer may not be required to make adjustments to an absence management procedure, a dismissal could constitute discrimination arising from disability if dismissal was not a proportionate response in all the circumstances.