Discrimination: Duty to make reasonable adjustments not triggered for disabled employee not certified fit to return to work
Published 11 February 2015
In January 2010, Miss Doran, an administrative officer at the Department for Work and Pensions ("DWP") went on sickness absence owing to stress.
She sent a medical certificate and asked if part-time hours could be considered in the future. At the beginning of February 2010, Miss Doran provided another medical certificate stating that she was unfit for work, which made no suggestion of a possible return if adjustments were made.
In mid-February, Miss Doran met with her line manager in a café to discuss the situation. Miss Doran stated that her doctor had advised her not to be "bullied" into returning to work before she was ready. In response, the line manager stated that Miss Doran could be offered administrative assistance duties and part-time hours for four weeks to support her return. Miss Doran said that she would speak to her doctor about it, but did not discuss the issue with the DWP again. On 26 May 2010, the DWP gave Miss Doran notice of dismissal, explaining that it could no longer support her absence. Under the DWP's attendance policy, it was rare that absences would be supported if there was no indication of a return to work within six months.
Miss Doran brought various tribunal claims, including that the DWP had failed to make reasonable adjustments under the Disability Discrimination Act 1995. She argued that the offer of a four-week phased return was not reasonable, considering that she had been unwell since January 2010. Further, she did not think that it was reasonable for the DWP to demote her and reduce her salary.
The tribunal held that although the DWP's attendance policy placed Miss Doran at a substantial disadvantage in comparison with non-disabled persons, the duty to make reasonable adjustments had not been triggered. This was because Miss Doran had given the impression that she would not be able to return any time soon, and her medical certificates continued to state that she was unfit for work. The tribunal noted that a phased return to work suggested by occupational health could not be implemented until Miss Doran indicated she was going to return to work. In its view, she would not have become fit for work within six months, after which the DWP would normally consider dismissal. There was no known reason to extend this time-frame for Miss Doran. Miss Doran appealed to the EAT.
The EAT dismissed the appeal agreeing that the duty to make reasonable adjustments had not been triggered as there was no indication that she was fit to return if adjustments were made for her. The EAT went on to state that that the tribunal were entitled to find that the ball was in Miss Doran's court to discuss the offer of the post of administrative assistant and a phased return when she became fit to do some work.
What this means for employers:
This case is a reminder that the employer's duty to make reasonable adjustments will not be triggered until information is given to them that an employee is fit to return to work with adjustments. Given the implementation of the government's Fit for Work regime this year employers may become aware of this earlier than before, not least when they receive a return to work plan from an employee's caseworker. The EAT's endorsement of the fact that in this case "the ball was in the employee's court" regarding possible reasonable adjustments does not change the fact under the legislation the duty to make reasonable adjustments falls on the employer.