And The Law Says

What every Employer needs to know about Reasonable adjustments

January 27, 2015

unfit to work

(Doran v Department of Work and Pensions)

Miss Doran began working for the Department for Work and Pensions (DWP) as an administrative officer in May 2009, on a fixed-term contract that was later extended to November 2010. In January 2010, Miss Doran went on sickness absence due to stress, and produced a medical certificate. She requested that her hours be changed from full-time to part-time work going forward. The following month, she produced a medical certificate, this time stating that she was unfit for work without any suggestion that she could return if adjustments were made.

In mid-February, Miss Doran had a meeting with her line manager to discuss the situation. The line manager suggested that Miss Doran could be offered administrative assistant duties and part-time hours for four weeks to support her return. The conversation ended on the belief that Miss Doran would liaise with her GP about this, but the DWP never heard back. In May 2010, the DWP gave her a notice of dismissal, explaining that it could no longer support her absence.

Miss Doran brought various tribunal claims, including that the DWP failed to make reasonable adjustments under section 4A of the Disability Discrimination Act 1995. She argued that the four-week phased return was not reasonable, along with the fact that the DWP administrative assistant duties constituted a demotion along with a reduced salary.

An employment tribunal held that the DWP’s attendance policy placed Miss Doran, a disabled person, at a substantial disadvantage in comparison with non-disabled persons. However, the tribunal rejected her claim, explaining that the DWP’s duty to make reasonable adjustments had not been triggered because Miss Doran had not informed if of a return date or given any other sign that she would be returning to work at a particular time. As a result, the tribunal held that a phased return to work suggested by occupational health could not be implemented. Miss Doran appealed to the EAT.

The EAT rejected Miss Doran’s appeal, reasoning that the duty to make reasonable adjustments was not triggered because she had not become fit to work, provided adjustments were made. The EAT also ruled that Miss Doran did have the power to negotiate with the DWP about the lower grade role offered, and a phased return to work plan when she became fit to do some work.

Steve Esmond Says: From an employer’s perspective, this is helpful clarification that the duty to make reasonable adjustments for disabled employees is only triggered once they are fit to return to work from a period of sickness absence.

However, employers must still be careful not to fall foul of the disability provisions of the Equality Act. This decision does not mean that the employee actually must return to work for the duty to apply. If, as is commonly the case with the current “fit note” system, a GP’s note or medical report states that a disabled employee is fit to return from sickness absence, subject to reasonable adjustments being made, then the employer’s duty to make them is triggered.

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