Do you need to make reasonable adjustments for an employee who is still ill and unable to return to work?

In a recent case the Employment Appeal Tribunal had to consider if the Employer, the Department for Work and Pensions (DWP) had an obligation to make reasonable adjustments, even if the employee was unable to return to work.

The Law

The Equality Act 2010 provides protection for employees who have a disability, and where an employer has a provision, criterion or practice which puts a disabled employee at a substantial disadvantage compared to a non-disabled employee, an employer must take reasonable steps to avoid the disadvantage.

Prior to the introduction of the Equality Act a similar obligation was contained in the Disability Discrimination Act 1995.

The Facts

The employee in this case Miss Doran began working for the DWP in 2009 as an administrative officer on a fixed-term contract.

In January 2010, Miss Doran was signed off from work by her GP due to stress and along with her providing sick certificate she asked if she could be considered for part-time hours in the future.

At the beginning of February 2010, she provided a further certificate stating that she was unfit for work, and no suggestion was made at this time of any possible return to work date.

Miss Doran then met with her line manager in mid-February 2010 and during the meeting her line manager stated she could be offered administrative assistance duties and part-time hours for four weeks to support her return to work. Miss Doran said that she would speak to her doctor about it, but did not respond to the DWP and remained absent from work.

The DWP obtained an occupational health report and in their view Miss Doran would not be fit to return to work within six months. On the 26 May 2010, the DWP gave notice of dismissal, stating that Miss Doran’s absence could no longer be supported due to the length of time that had passed and prospective time for a return to work. In accordance with their attendance policy, if there was no indication of a return to work within six months it was rare that absences would continue to be supported by the DWP.

Miss Doran brought various tribunal claims, including in respect of a failure to make reasonable adjustments under the Disability Discrimination Act 1995.

Miss Doran argued she had been placed at a substantial disadvantage due to the DWP’s attendance policy and that the offer of a phased return at a lower grade was unreasonable.

At the Employment Tribunal they agreed that Miss Doran was at a disadvantage in comparison to non-disabled persons because of the attendance policy, however the Tribunal rejected her claim that the DWP had failed to make reasonable adjustments.

The Employment Tribunal concluded that the DWP’s duty to make reasonable adjustments had not been triggered because Miss Doran had not informed them of a date for her return to work nor had she given any indication that she would be returning to work.

Miss Doran appealed to the Employment Appeal Tribunal.

The Decision

The Employment Appeal Tribunal rejected Miss Doran’s appeal and followed previous cases on this issue.

They decided that the duty to make reasonable adjustments by the DWP had not been triggered as Miss Doran had not become fit to work even if adjustments were made. They also agreed with the Employment Tribunal decision that the tribunal had been entitled to find that it was for Miss Doran to raise the issue of adjustments and the reasonableness of the suggested adjustment of a lower grade role with a phased return when she became fit to do some work.

Points to note

This case illustrates that there is, generally, no obligation to make reasonable adjustments for a disabled employee where there is no indication that the employee will be fit to return to work.

If however the employee, their GP or occupational health suggest that reasonable adjustments are what is preventing the employee from returning you would have an obligation to consider and make adjustments.

It should also be noted that this case was decided under the previous legislation and now under the Equality Act 2010 an employee dismissed because of long-term sickness absence may be able to claim discrimination arising from disability.

This claim will arise where an employer treats an employee unfavourably because of something arising in consequence of the employee’s disability and the employer will be required to show objective justification to avoid liability. This means that the onus will be on you to justify your decision to dismiss.

It is important to note that the Equality Act places no obligation on the employee to make suggestions about reasonable adjustments and therefore you should not wait for them to make the suggestions. It is good practice to discuss adjustments with the employee and you should certainly agree them with the employee before taking action.

There have been numerous cases about disability and employees who are on long-term sickness absence and it is certainly an area of law where employers should take care about making adjustments and decisions about terminating employment.

If you are concerned about this and would like to learn more about how best to manage sickness absence and the absence of disabled employees then I will be hosting a half day training session on this subject, along with Mark Elliott from Whight Safety Consultancy, on the Wednesday 4th March 2015.

The training, titled, A managers guide to Absence Management & Well-being in the workplace, will from 9am until lunchtime and the cost is £74.95 with a discount of 20% (£59.95) for Isle of Wight Chamber members and £49.95 for existing clients.

Please contact me on 01983 897003, 02380982006 or by email to alison@realemploymentlawadvice.co.uk

Doran v Department for Work and Pensions