Reasonable adjustment duty
11 February 2015
Does the reasonable adjustment duty apply while an employee is unfit to return to work?
Doran started a period of sickness due to stress on 12 January 2010. At the start of February 2010, Doran submitted a further medical certificate confirming she was unfit for work. No suggestion was made of a return to work if adjustments were made. Doran confirmed during a meeting in mid-February with her manager that her GP had advised her not to be intimidated into returning to work before she was ready. The manager offered her administrative duties and part-time hours for four weeks to support a return to work. Doran said that she would speak to her GP but did not contact the DWP. The DWP's attendance policy stated that it was rare that absences would be supported if there was no indication of a return to work within six months. Doran’s absence continued. In early May she indicated that her GP had advised that work would hamper her recovery and was highly likely to exacerbate her current depression and stress, but she intended to work as soon as she and her GP saw fit. Doran was given notice of dismissal on 26 May as her absence could no longer be supported.
Doran claimed that the DWP had failed to comply with its duty to make reasonable adjustments. A tribunal found that the duty had not been triggered because Doran had not informed DWP of a return date or given any other sign that she would be returning to work at a particular time. The EAT agreed with the tribunal and rejected Doran’s appeal. On the facts of this case, there was no indication from Doran that she was fit to return to work if adjustments were made for her. Her medical certificates were to the effect that she was not fit for any type of work. She did not become fit until September 2010. That was well after the period of six months in the DWP policy. In the circumstances, the tribunal was entitled to hold, that the duty to make reasonable adjustments was not triggered as Doran could not indicate a definite date for her return and in such circumstances, consideration of any adjustments would be futile.
While this case was decided under the Disability Discrimination Act 1995, arguably the same principles apply under the Equality Act 2010. However, under the latter, a disabled employee dismissed because of long-term sickness now has the ability to bring a "discrimination arising from disability" claim under S.15 of the 2010 Act, i.e. where an employer treats an employee unfavourably because of something arising in consequence of the employee's disability. But, if the employee gets over the first hurdle by showing unfavourable treatment, the employer can defend the claim by demonstrating that the treatment is a proportionate means of achieving a legitimate aim.