Duty to Make Reasonable Adjustments Not Triggered Until Employee Ready to Return to Work
An employer’s duty to make reasonable adjustments had not been triggered as the employee had not given any indication that she would be fit to return to work any time soon.
In Doran v Department for Work and Pensions, the employer’s attendance policy provided that absence would not normally be supported if there was no indication of a return to work within six months. D was absent from work due to stress. There were various meetings to discuss her absence and she was assessed by occupational health. Her line manager offered her administrative assistant duties and reduced hours to support her return and although she said she would discuss this with her doctor she did not respond and she continued to be certified as unfit for work by her doctor. After she had been off work for about four and a half months, D was told that her absence could no longer be supported and she was given notice of the termination of her employment.
D claimed disability discrimination, arguing that her employer had breached the duty to make reasonable adjustments. The employment tribunal rejected her claim. The attendance policy put D at a substantial disadvantage in comparison with non-disabled persons. It resulted in her dismissal as she was unable achieve satisfactory attendance levels and return to work within a reasonable time. However, the duty to make reasonable adjustments had not been triggered as the adjustment contended for (a phased return on reduced duties) could only be regarded as reasonable once she had indicated a date for her return.
The EAT upheld the tribunal’s decision. The employment tribunal had been entitled to decide that the duty to make reasonable adjustments was not triggered because the claimant was not fit for work even if adjustments were made. There was no indication that D would return to work if adjustments were made for her. Her medical certificates all stated that she was not fit for any work and in fact she did not become fit for work until some months after her employment terminated.
A phased return to work is a common adjustment which can support an employee’s return to work. This is not the first case to decide that an employer’s duty to make reasonable adjustments by offering a phased return is not triggered until the employee is fit enough to return to work, or has at least given an indication of when they may be fit to return. However, it is a useful reminder of the principle.
Nevertheless employers should tread carefully. Just because the duty to make reasonable adjustments is not triggered does not mean that employers can safely dismiss. Employees dismissed due to long term absence may also be able to claim discrimination arising from disability, meaning that the employer will have to justify the decision to dismiss. It will need to show that its decision to dismiss was in pursuit of a legitimate aim and that dismissal was a proportionate means of achieving that aim.
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