Public and Commercial Services Union

DWP/BB/036/08

No policy change

DWP policy to make reasonable adjustments to support underlying health condition or disability related sickness absence remains unchanged (policy para 6/procedures para 2.2). The consideration point for unsatisfactory attendance may be increased to take account of additional absences linked directly to a disability or underlying medical condition. However, DWP advice on how to do so has changed.

DWP advice changes

Managers are required to comply with DWP policy and procedures but advice does not always provide hard and fast rules.

Until 2007 the normal practice for consideration point increases was to inform the employee that, for example, in the case of a full time employee, “your consideration point has been increased to 16 days. This comprises the usual 8 day consideration point plus an additional 8 days for your disability related absence. The usual 8 days will apply for absences that are not related to disability related absence and may also be used for disability related absence. However, the additional 8 days may only be used for disability related absence.”

Revised advice ( Q&A 12 ) was first published by DWP in November 2007 but revised in February 2008.

Revised advice Q&A 12

Current DWP attendance management advice from February 2008 (Q&A 12) puts an emphasis on the usual consideration point and a disability/underlying health consideration point being entirely separate. This approach is not necessarily wrong provided the policy intention to provide a reasonable increase on the usual consideration point, to support disability/underlying health condition related absence, is actually achieved.

The concluding bullet points of advice Q&A 12 are an inadequate, contradictory and misleading summary of the appropriate answer to the question of formal action when an employee has an increased consideration point. PCS advice in such cases is that a manager should not take formal action:

• Simply because there has been no change in the employee’s health condition but their increased consideration point has been reached or exceeded (deciding an increased level of support is “not an exact science”. Absences may vary from year to year so a flexible approach is essential.) and/or
• Without OHS advice that absences are in excess of what may be expected due to the nature of the disability/health condition, or
• Simply because, together with any other absences in the rolling 12 month period, the absence level exceeds the usual consideration point (there is an expectation under DWP policy for a consideration point to be increased to support disability/health condition related absence. DWP also has a positive duty to do so under the DDA.) or,
• Unless there is transparent, objective evidence that "the sum total of DWP’s resources" are unable to support the level of absence in question and there is no scope for any other reasonable adjustment to do so.

DDA positive duty

The House of Lords judgement in Archibald v Fife Council (2004) considered what should be done to safeguard or promote the integration of disabled people in the working environment and concluded that, "to the extent that the duty to make reasonable adjustments requires it, the employer is not only permitted but obliged to treat a disabled person more favourably than others". In this judgement the House of Lords held that the Disability Discrimination Act (DDA) imposes a positive duty to make reasonable adjustments and obliges an employer to positively discriminate in favour of disabled employees ie treat them differently and more favourably than non-disabled employees where a 'provision, criterion or practice' places the disabled person at a substantial disadvantage in comparison with non disabled employees.

Support not warnings

Employees may have a raised consideration point which has been notified on the basis that the usual consideration point is also available to support disability/underlying health related absences. Such employees are entitled to use their raised consideration points as defined when it was given subject to any review which must be discussed with them.

When considering or reviewing an increased consideration point the same principles apply as for any other reasonable adjustments. DWP guidance on reasonable adjustments provided for line managers under diversity and equality (How do I know what is reasonable?) states:

"Managers must bear in mind that DWP is a large public sector employer and is expected to have a degree of flexibility. The sum total of DWP’s resources would be taken into account if a legal challenge was made."

DWP policy for attendance management is to consider reasonable adjustments whether or not the Disability Discrimination Act (DDA) applies (attendance advice Q&A 6). The sum total of DWP resources should therefore also be taken into account when considering internal challenges under the grievance procedures on reasonable adjustments for both disability and underlying health cases.

See PCS branch briefing DWP/BB/037/08 for further guidance on attendance management and consideration point reasonable adjustments.

Evidence for review

Employees have the right to use the grievance procedures when dissatisfied with a warning. Details of warnings that have been wrongly given and not corrected under the grievance procedures should be provided to PCS DWP group office. Evidence of problems with the operation of policy and procedures is needed to support the case for further improvements.