No, held the Court of Appeal in Griffiths v Secretary of State for Work & Pensions.
The Appellant was an administrative officer who suffered from post-viral fatigue and fibromyalgia. She asked the Respondent to withdraw the warning issued after a 66-day absence from work, mostly attributable to her disability, and to modify the policy for the future so that she could have longer periods of absence without sanction than would be permitted to a non-disabled employee. The Respondent refused, and the Appellant complained of a failure to make reasonable adjustments required under the Equality Act.
The provision, criterion or practice (PCP) relied on was “a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal.” The employment tribunal and EAT felt bound by the perplexing decision of the EAT in Royal Bank of Scotland v Ashton to hold that the PCP did not put the Appellant at a disadvantage compared with those who were not disabled, because a non-disabled employee absent for a similar period would have been subject to the same process. Hence no s.20 duty arose.
The trouble with Ashton was that it abolished the duty to make reasonable adjustments at a stroke. If the correct comparator is a person on whom the practical effects of a PCP are the same as they are on the disabled person, no s.20 duty can ever arise: the devoted pet-owner’s dinner is as much disrupted by the restaurant’s ban on dogs as the blind diner’s.
Though dismissing the appeal (for other and less interesting reasons), Elias LJ has finally laid Ashton to rest.