Offer of Phased Return Complied with Reasonable Adjustments Duty

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Posted on 13 Nov 2013

An employer who offered reduced working hours for 13 weeks to assist an employee to return to their normal contractual working hours had complied with its duty to make reasonable adjustments. It was not obliged to offer a guarantee in advance that this period would be extended if the employee was unable to return to contractual hours at the end of the 13 week period.

In Secretary of State for Work and Pensions v Higgins, the employer had a policy which provided for employees who had been on long term sick leave to return to work on reduced hours for 13 weeks. Having been off sick for over a year due to a heart condition, H was given a fit note by his GP indicating that he may benefit from a phased return over a three month period. H was asked what he felt capable of doing over that period and his employer agreed to a phased return to work on that basis.

H said that he was not prepared to return unless his employer agreed in advance that it would extend the 13 week period if he was unable to return to his contractual hours after 13 weeks. The employer refused and he was dismissed on the ground that he had refused to return to work when he had a fit note saying he was able to return to work on a phased basis.

H claimed his employer had breached its duty to make reasonable adjustments. The tribunal upheld his claim, ruling that it would have been reasonable to specify a return to work over a 13 week period, subject to reviews, but an offer which appeared expressly to reject the possibility of a review and extension was not reasonable.

The EAT allowed the employer’s appeal. The tribunal should have considered how effective the employer’s proposed adjustment (a phased return with no review) would have been in preventing the disadvantage to H caused by the requirement to work contractual hours. The phased return the employer had offered allowed H to do the reduced hours he suggested and so on the face of it was effective in preventing the disadvantage. The tribunal had been wrong to conclude that it was essential for the employer to say at the outset that it would review and extend the period if necessary.

As the EAT pointed out in this case, the employer remained under a duty to make reasonable adjustments. If at the end of the 13 week period, the employee had still been unable to return to his contractual hours, the employer would have had to consider at that stage whether to agree an extension as an adjustment. This decision would have to be based on the circumstances existing at that point, including the prospects of the employee being able to return to contractual hours if an extension were granted. Employers can therefore take a staged approach to adjustments and do not have to give a guarantee at the outset that if a phased return over a fixed period does not work, the period will be extended.

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