Public and Commercial Services Union

DWP/BB/037/08

Management not medical decision

This circular outlines the issues which need to be addressed when putting a case for reasonable adjustment of the consideration point under the attendance management policy, procedures and advice. The decision to adjust the consideration point will be informed, but not dictated, by medical evidence/Occupational Health Service (OHS) advice. Medical evidence should not be relied on to automatically deliver a reasonable adjustment.

The adjustment is a management decision not a medical decision.

Underlying health condition or disability

DWP attendance management policy gives employees the "right to expect to have reasonable adjustments considered and made, where appropriate, when you have an underlying health condition or disability" (policy para 6).

DWP policy does not restrict the duty to consider reasonable adjustments to employees covered by the Disability Discrimination Act (DDA) (advice Q6).

A manager may decide to increase the consideration point by a reasonable amount to take account of additional absences linked directly to a disability or underlying medical condition based on advice from the OHS (advice Q5).

Formal action begins when the employee’s absences reach the level of the consideration point, which may be increased to take account of additional absences linked directly to a disability or underlying medical condition (procedures para 2.2).

Reasonable adjustment criteria

The decision to increase the consideration point will depend on the individual circumstances of each case. The criteria used to decide the extent of the increase will include:

• the number of days absence recorded for the disability or underlying health condition over the previous 12 month period;
• the ability of the business to support absence including the operational consequences of the adjustment;
• the effect of the adjustment on other employees which may include allocating some of the individuals duties to another person/other staff.

The same underlying health condition or disability will result in different rates of absence in each individual case. Whilst the OHS can identify or confirm a disability/underlying medical condition, the only guidance for the number of days to extend the consideration point will be the level of absence in each case over the previous 12 month period.

The DWP has not set any upper limit on the number of days by which the consideration point may be extended. The context of the increase is that sick absence statistics are based on the department having 225 working days in a 12 month period. A reasonable adjustment to support a full time worker with an absence level of 45 days would therefore be 20% of the employee’s working year in that individual case. A consideration point increased to 22 days would support an absence level of under 10% for a full time employee over the year.

DWP diversity and equality guidance for line managers 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."

The purpose of the adjustment is to retain the individual in employment, whether or not the DDA applies, saving the department from the loss of trained, experienced staff. The extent of the adjustment will always depend on the individual circumstances of each case. In case law, decided by the House of Lords in Archibald v Fife Council (2004) it was held that the DDA imposes a positive duty to make reasonable adjustments: "the employer is not only permitted but obliged to treat a disabled person more favourably than others".

Reasonable adjustment checklist

PCS representatives supporting a case for adjusting the consideration point should ensure the manager:

• knows that the employee has an underlying health condition or disability;
• is reminded that employees have the right to expect a reasonable adjustment when they have an underlying health condition or disability (policy para 6);
• is expected to consider increasing the consideration point before any consideration of an oral improvement warning (procedures para 2.2);
• is asked to consider adjusting the consideration point for both previous and future absences directly related to the health condition or disability;
• is reminded that a warning pending OHS advice should not be given when available medical evidence already confirms that that the employee has an underlying health condition or disability;
• is reminded of the resources available to support the absence which may extend to the “sum total of DWP’s resources”;
• should consider allocating some of the individual’s duties to someone else/other staff;
• can consider agreement to transfer the individual to another vacancy or place of work when appropriate;
• can consider providing supervision or other support when appropriate;
• is reminded that DWP is not only permitted but obliged by the DDA to treat a disabled person more favourably than others.

Best management practices

When a consideration point is extended for future absence this should not be used as an excuse to give an improvement warning at the same time. The decision not to give a reasonable adjustment for previous absence should always be justified.

When absences exceed the adjusted consideration point the extent of the adjustment should be reviewed before any consideration of a warning.

Dispute unreasonable decisions

Unreasonable decisions need to be challenged using the DWP grievance procedures. The DWP 15 day time limit to submit a grievance is not a requirement of the DDA. A PCS member covered by the DDA should take advice from their representative and submit a letter to their manager which sets out their grievance, and the basis for it, as soon as possible but no later than 3 months after the disputed decision.

Members covered by the DDA

A failure to make a reasonable adjustment when the member is covered by the DDA may amount to disability discrimination. What is or is not a reasonable step will be decided by reference to the effectiveness of the adjustment, the practicability of carrying it out, its cost, the financial resources and size of the employer, the availability of financial assistance, the nature of the employer’s activities and the size of the employer’s undertaking (DDA section 18B).

Members covered by the DDA may have a claim to an employment tribunal (ET) when there has been a failure to make a reasonable adjustment.

In the case of the duty to make reasonable adjustments, the tribunal must look at all the circumstances of the case in coming to a view as to whether the employer has met the duty to make reasonable adjustments and is perfectly entitled to substitute its own judgement for that of the employer

PCS representatives should remember:

• a grievance must be submitted within 3 months when there is a failure to make a reasonable adjustment giving 28 days for a response before an ET claim is submitted in a DDA case;
• the time limit for an ET claim starts from when the reasonable adjustment is refused/warning given;
• advice should be requested from DWP group office, using form PC1 available from the PCS website, before submitting an ET claim when the time limit allows.

Justification under DDA

Disability related discrimination can be justified, under the DDA, by the employer as long as it has complied with its duty to make reasonable adjustments or if reasonable adjustments would have made no difference.

An employer cannot justify discrimination for a reason related to a person’s disability under DDA section 3A(1), if a reasonable adjustment would have prevented the reason from arising in the first place (section 3A(6).

Other PCS guidance

Current guidance for branches on attendance management is available on the PCS DWP group website and includes:

DWP/BB/108/06 HR decision makers guide

DWP/BB/006/07 Your attendance management rights

DWP/BB/023/07 Attendance management improvement warnings

DWP/BB/024/07 Attendance management and “one off” absences

DWP/BB/031/07 Attendance review meetings and trade union representation

DWP/MB/010/08 Your grievance and trade union rights

DWP/BB/036/08 Attendance management advice (Feb 2008) on separate consideration points

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.