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Archive for September 4th, 2011

Employers are required to make ‘reasonable adjustments’ to prevent their disabled workers from being placed at a substantial disadvantage in comparison with persons who are not disabled. This may arise in the context of enabling a disabled person to remain in work or, as in this case, to facilitate a disabled employee’s eventual return to work after a period of long term sick leave.

The employee argued that the employer’s failure to have taken certain steps amounted to a failure to make reasonable adjustments and was therefore a breach of the employer’s duty. In this case the Employment Appeals Tribunal considered what amounts to a reasonable adjustment in the context of an employee who was disabled by virtue of her suffering from chronic fatigue syndrome.

The EAT said that adjustments that do not have the effect of alleviating a disabled person’s substantial disadvantage in comparison with persons who are not disabled do not amount to reasonable adjustments for the purposes of the law in this area. Accordingly the EAT held that the following did not amount to reasonable adjustments:

• the production by an employer of something that the employee could take to their GP to sign him or her off for some form of ‘light duties’ (even if such duties consisted of non-productive work) as a form of rehabilitation;

• the granting of permission for an employee to take a career break.

In giving its judgment, the EAT also said that consultations, trials and exploratory investigations do not amount to reasonable adjustments.

The EAT also had to decide whether the employee had a claim for constructive unfair dismissal. It decided that she did not. There had been no ‘last straw’ which had resulted in her resignation, the employer’s behaviour had not amounted to a serious breach of the terms of the contract of employment (the employer had not destroyed the relationship of trust and confidence) and there had been no failure on the part of the employer to make reasonable adjustments.

As to what amounts to a reasonable adjustment will depend upon the circumstances of a particular case. In a case concerning an employee who has been on long term sick leave reasonable adjustments may include allowing a phased return to work, changing their working hours or allowing them to work from home.

Case reference: Salford NHS Primary Care Trust v Mrs A F Smith

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