In broad terms, an employer has a positive duty to make reasonable adjustments where a disabled employee is put at a substantial disadvantage by their employer’s provision, criterion or practice (PCP). In a recent case the Employment Appeal Tribunal (EAT) considered the scope of this duty where a disabled employee is absent on long-term sick leave.
The claimant in the case was Miss Doran, an administrative officer at the Department for Work and Pensions (DWP). Miss Doran became ill in January 2010 and submitted regular sick notes in support of her absence. The DWP applied a PCP that it would not usually support absence where there was no indication of a return to work within six months. Miss Doran failed to give any indication of a return within this timeframe and was dismissed in May 2010. She brought several claims against the DWP, including a claim for failure to make reasonable adjustments such as a phased return to work.
The EAT held that the DWP’s PCP did place Miss Doran at a substantial disadvantage as compared with non-disabled persons. However, it found that the duty to make reasonable adjustments was not triggered because Miss Doran failed to inform her employer that she was fit to return to work under reasonable adjustments, and there was no medical evidence indicating that she was able to carry out any work. Although there were deficiencies in its procedures, the DWP had sought medical advice and written to Miss Doran requesting an update and further information on her condition. The onus was therefore on Miss Doran to raise the issue of adjustments when a return to work became foreseeable.
While the EAT’s decision will provide some comfort for employers, dismissing a disabled employee after haphazard contact risks inviting a claim for both failure to make reasonable adjustments and for disability discrimination. The legislation in this area does not impose any duty on a disabled person to suggest adjustments, so employers should proceed with caution. Best practice remains to keep in regular contact with employees on long-term sick leave, to request updates on their prognosis and to pro-actively invite and consider any suggestions for adjustments.