The duty to make reasonable adjustments may continue when an employee goes on sick leave

The Employment Appeal Tribunal has held that an obligation to make reasonable adjustments does not necessarily end when an employee goes on sick leave. The point made a difference to whether the employee had presented his claim to the Tribunal in time.

The employee in this case brought a claim for disability discrimination following a period of sick leave. He argued that his employer failed to make reasonable adjustments to take into account his disability and that, if  the employer had made reasonable adjustments, he would not have gone on sick leave in the first place, or  indeed later adjustments would have enabled him to return to work.

At first instance the judge said that any duty to make reasonable adjustments ended when he went off sick because he was “simply unable to be at work”.

The employee appealed and won.

The Employment Appeal Tribunal said that, in some cases, adjustments while on sick leave would not make any difference to the employee.  This tribunal, it said, should have decided whether it was the very failure to make the adjustments which kept the employee away from work.  

Case reference: Olenloa v North West London Hospitals NHS Trust

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What is a ‘reasonable’ adjustment for the purposes of discrimination law?

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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