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When must an employer make reasonable adjustments?

Posted on 21st January 2015
Case law

Correctly handling an employee’s long-term sickness absence can be a challenge for any employer, especially if the employee is a ‘disabled person’ under the Equality Act 2010. A key provision of this Act requires employers to make reasonable adjustments that would allow the employee to return to work. But when is this duty triggered? This was the question the Employment Appeal Tribunal (‘EAT’) had to decide in this case.

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the duty to make reasonable adjustments had not been triggered because the claimant had not indicated she would be fit to return to work

Angela Doran v Department for Work and Pensions EAT November 2014

The answer was that the duty to make reasonable adjustments did not arise because the claimant (Miss Doran) had continued to be certified as unfit for any work and she had not been given any indication of when she might be able to return to work.

A look at the key facts helps to explain the EAT’s clarification.

Facts

At the employment tribunal Miss Doran won her claim for unfair dismissal but her claim for disability discrimination based on a failure to make reasonable adjustments failed. The EAT was asked to look again at the merits of her claims.

Miss Doran’s sickness record with the respondent was not a good one. After about 7 months’ employment she started a long period of sickness absence suffering from a non-work related stress illness of anxiety and depression. In time Miss Doran’s absence fell inside the respondent’s sickness policy as set out its Staff Handbook. She was referred to occupational health and her manager maintained regular contact with Miss Doran.

At a review meeting Miss Doran’s illness and likely return to work date were discussed. In response to Miss Doran’s concerns her line manager explained that she could be offered temporary alternative work and part-time hours for four weeks to support her return to work. There was no suggestion or discussion that this would involve a reduction in salary. Miss Doran said she would think about it and asked if her employment was at risk. Her line manager explained that after 28 days’ sick leave the question of whether absence could be supported had to be considered, in line with the sickness policy.

After about three months’ continuous sickness absence the issue of whether Miss Doran should be demoted or dismissed was considered by a senior manager who concluded that dismissal was the appropriate outcome.

In accordance with the sickness policy, before a final decision could be taken, Miss Doran was invited to attend a review meeting with the senior manager. Miss Doran’s GP replied saying that he had advised Miss Doran it may be “counter-productive” on medical grounds for her to attend meetings at work. The respondent therefore wrote again to Miss Doran and said that in order “to conclude matters in a reasonable time frame” it would deal with the issues via “the correspondence route” as permitted under the sickness policy.

This letter asked a number of questions the most important one being, “What is the likelihood of an early and sustained return to work?” In reply Miss Doran was unable or unwilling to give an answer to this question stressing that she remained unable to return to work and that she had a valid medical exemption from her GP. She also said the idea of a four week phased return was “not very fair or a reasonable adjustment”. Miss Doran concluded her letter by stating:

“To summarise I have every intention of returning to work as soon as I and my GP see fit. I will be willing to engage with OHS if required and also discuss and agree a reasonable timescale to attempt a ‘phased return’. I would also like to discuss what reasonable adjustments pertaining to my case would be in more detail.”

After another three weeks' absence the respondent by letter dismissed Miss Doran on full notice. The reason for dismissal was that her absence could no longer be supported by the respondent. Miss Doran continued to be unfit for work and had not indicated any date by which she might be able to return to work.

Miss Doran appealed against her dismissal arguing that whilst she was unwell she should have been given more time to recover and that the respondent had not followed in full its sickness policy.

The appeal was unsuccessful although the respondent did admit that a case conference had not taken place at the appropriate time. The appeal office concluded, however, that as occupational health advice had been taken and “given that there is still no indication of when you might be well enough to resume work, the case conference is unlikely to have offered any further alternative”.

The employment tribunal's decision

The employment tribunal accepted the respondent’s evidence that it would normally consider the option of dismissal after three months’ absence. However if there was an indication of a return to work within another three months, making a total of six months’ absence, it was possible that continued absence could be supported. After six months’ absence it was rare for absence to be supported.

Thus the employment tribunal held the duty to make reasonable adjustments had not been triggered because the claimant had not indicated she would be fit to return to work. The tribunal noted that in her last letter she had “painted a picture of someone not able to return anytime soon.” It also noted that none of the GP’s sick notes stated that the claimant may be fit for work subject to any adjustments.

The employment tribunal held that the evidence showed that Miss Doran was not required to either return to her previous role without adjustment or to return with a fixed four-week phased return – this had just been floated for discussion with her. The “ball was in the claimant’s court” to discuss any reservations about the idea but she did not.

The EAT's decision

The Employment Appeal Tribunal upheld the employment tribunal’s decision agreeing that on the facts of Miss Doran’s case the duty did not arise because she was unfit to return to work even if adjustments were made for her.

In practice | What are the lessons to learn?

The outcome for Miss Doran at the employment tribunal may well have been quite different had she been able to show there was a reasonable prospect of returning to work before the end of six months’ absence. Had she done this then the Department of Work and Pensions would have been obliged to pursue the possibility of what reasonable adjustments to make including the option of a phased return to work. Additionally, if Miss Doran’s medical evidence about her return to work date was disputed, the Department may have wanted to refer her back to OH.

The Department of Work and Pensions made one mistake; it did not follow its own sickness policy correctly and this is why Miss Doran won her claim for unfair dismissal. This shows the importance for employers of following the right HR procedures and its own policies. However, Miss Doran compensation award was for the modest sum of £1,959. The employment tribunal had applied a 75% reduction to reflect the fact the dismissal was the most likely outcome even if the correct procedure had been followed.

From an evidential point of view the respondent was no doubt helped by its correspondence with Miss Doran. This allowed the employment tribunal to conclude that the idea of a four week phased return period was not a definite requirement but an idea for discussion.

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