09/11/2011

Employment e-Brief – duty to make reasonable adjustments

Employers have a duty to make reasonable adjustments for their disabled employees (and applicants) under the Equality Act 2010 (“EqA”). The recent case of Salford NHS Primary Trust v Smith provides guidance on what would be sufficient to meet the duty of any reasonable adjustment.

This was a case decided under the old law, namely the Disability Discrimination Act 1995 (“DDA”). Similar provisions on duty to make reasonable adjustments have been included in the EqA, and thus the principles in this case will be useful for future reference.

The Facts

Mrs Smith was employed by Salford NHS Primary Care Trust (the “Trust”) as an Occupational Therapist. She embarked on a period of long-term sick leave, by reason of chronic fatigue syndrome, from March 2007. During her period of sick leave, her role ceased to exist and other roles for Mrs Smith to return to were considered by the Trust. Additionally, Mrs Smith attended various Occupational Health meetings, the report of one suggesting that she be offered a career break.

Mrs Smith in the meantime confirmed that she did not want to return to her former client-facing position or particularly to return to her place of work.

After a failing to attend a series of meetings scheduled, the Trust sent a letter to Mrs Smith advising her that she must attend the next scheduled meeting. The Trust further wrote that should Mrs Smith fail to attend, it would have to consider other possibilities including terminating her employment. This was not however the first time that termination of her employment had been referred to in letters sent by the Trust; but this time Mrs Smith tendered her resignation citing lost confidence in the Trust and lost belief that they were attempting to assist her in her return to work.

The Decision

The Employment Appeal Tribunal provided that reasonable adjustments should be “substantive” in that they should “alleviate” the disadvantage a disabled person faced. They distinguished this with “procedural” reasonable adjustments, such being the obtaining of a medical report and arranging meetings to discuss the employee’s prognosis. It overturned the Employment Tribunal’s decision that there had been a failure to make reasonable adjustments and constructive unfair dismissal.

The Employment Appeal Tribunal did add that it was surprised that it was considered that a career break could be a reasonable adjustment. They felt that this would place a disabled person at a substantial disadvantage and would further affect any potential ill-health retirement in future.

Due to the obligation on a employer to make reasonable adjustments, it would be prudent for an employer to obtain advice in respect of employees on long-term absence. A key point to remember in this case is that Mrs Smith was still medically unfit to return to work at the time of her resignation and accordingly, the Trust could not make any reasonable adjustments at that time.

These sorts of claims can be time-consuming and costly to defend. To obtain further information, please contact any member of the employment team on 0113 227 0243.