The employee in this GB case worked for the employer for over 30 years when she started to experience the symptoms of conditions which were later diagnosed as post viral fatigue and fibromyalgia. She had 66 days off work, 62 of them related to her disability. She was given a formal written improvement warning which was in accordance with the terms of the respondent's Attendance Management Policy that envisaged the possibility of disciplinary sanctions after a specified period of absence from work.

The claimant argued the employer should have discounted the 62 disability-related absences as a reasonable accommodation (known as reasonable adjustments in the UK) under disability discrimination legislation. Going forward, she thought all disability-related absences should be discounted.

Could or should disability-related absences be discounted under a reasonable adjustment duty? Probably not and certainly not in this case, according to the Court of Appeal.

The Provision Criterion or Practice (PCP) the claimant said was imposed on all staff and had a disproportionate effect on her was “a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal.”

Elias LJ, giving the lead judgement concluded that the tribunal had been entitled to find that discounting all of the absences before and after the warning was a step too far. However, his comments and conclusions should give all employers and employee representatives food for thought:

"If the worry and stress of being at risk of dismissal is to be eliminated altogether, then all disability-related illness must be excluded. But if that step is not taken - and no-one was suggesting that it should be - then in a case like this when lengthy further periods of absence are anticipated, the period by which the consideration point should be extended becomes arbitrary. As the majority point out in paragraph 49 when drawing an analogy with the O'Hanlon case, in so far as the alleged disadvantage is with the stress and anxiety caused to a particular disabled employee, it would be invidious to assess the appropriate extension period by such subjective criteria...

"[The second adjustment] is designed to look into the future and to limit the risk of future disciplinary treatment being meted out for absence from work which would be disproportionate. But even where there are no relevant reasonable adjustments of this nature to be made, the question would still arise, at the time of dismissal, whether the dismissal is a proportionate response to the pattern of absences having regard to all the circumstances, including the important fact that they may be wholly or in part disability related."

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1265.html

NOTE: Unlike GB, Northern Ireland has no modified and unified Equality Act and has not corrected the anomaly of the Malcolm v Lewisham decision on disability-related discrimination, so there is some doubt about whether the outcome would be the same in NI. Nonetheless, NI has duties in relation to reasonable adjustments.