How should an employer handle an employee's long-term sickness? Are they obliged to make 'reasonable adjustments' to their working conditions before they return to work?
A recent Employment Appeal Tribunal (EAT) gives helpful guidance to employers faced with employees off on long-term sickness absence.
The EAT confirmed that before a duty to make 'reasonable adjustments' is triggered there must be some indication from the employee that they will be fit to return at some point in the future.
The case – Angela Doran v Department of Work and Pensions
We appeared before the employment tribunal to defend the claims of unfair dismissal and disability discrimination. Angela Doran was an employee of the DWP. She suffered from stress and was absent on long-term ill health. Her employer commenced an attendance management procedure.
Ms Doran's GP completed a number of fit notes which intimated that she was not fit for work but gave no indication that she may be fit if adjustments were made to her working conditions. In response to queries from her employer about when she might be fit to return, Ms Doran responded that her GP had advised that work would hamper her recovery. The claimant gave no indication of when she might be fit to return to work.
Following its internal policy, the DWP took the view that Ms Doran's absence could no longer be supported. Her absence had lasted for period in excess of six months and the respondent's policy was that absence of that length was rarely supported. Ms Doran was dismissed and her appeal against dismissal rejected.
Among claims for unfair dismissal and other heads of disability discrimination, the claimant suggested that the respondents failed to make reasonable adjustments.
The decision maker at DWP had reached the view that the claimant was not capable of achieving satisfactory attendance levels within a reasonable period of time. The employment tribunal found that Ms Doran had painted the picture of someone not able to return to work any time soon. The DWP had asked Ms Doran about the likelihood of an early and phased return to work. In response, she suggested that she was gradually recovering, in very small steps, and that she was not yet fit. She had intimated that she had every intention of returning to work as soon as she and her GP saw fit.
At first instance, the employment tribunal identified the provision, criterion or practice which applied to Ms Doran was the application of the respondent's attendance procedure, in particular whether Ms Doran was capable of achieving satisfactory attendance levels within a reasonable period of time. The tribunal found that the evidence suggested that the disadvantage which Ms Doran suffered was her dismissal following an inability to return within what the DWP considered a reasonable period of time.
We successfully argued that it was reasonable that employers could not pursue the possibility of a phased return to work until the employee could indicate a definite date for return. Since she had not indicated to the DWP a start date, or given any other sign that she would return to work at a particular time, we argued that the duty to make reasonable adjustments was not triggered.
The tribunal accepted our submissions and dismissed the claim - the adjustments which Ms Doran sought could only be regarded as reasonable when she was back at work or had at least indicated with a start date when she would return.
The EAT upheld the decision of the tribunal and confirmed that it had been entitled to hold that the duty to make reasonable adjustments was not triggered because the claimant did not become fit to work under reasonable adjustments.
Practical implications – disability discrimination claims
This decision, raised under the provisions of the Disability Discrimination Act 1995, will be helpful to employers facing claims for failure to make reasonable adjustments in similar circumstances.
However, since the introduction of the Equality Act 2010 there is a possibility that claimants will instead seek to make claims for discrimination arising from a disability, particularly in cases which involve dismissal related to long-term sickness absence.
In such cases, employers will still require to give consideration to whether their acts or omissions in response to situations and circumstances which arise as a result of an employee's disability are a proportionate means to achieving a legitimate aim.
It is likely that the application of internal attendance management processes to employees with health conditions which amount to a disability will continue to give rise to claims of disability discrimination.
Gillian Shaw successfully represented the Respondent in the employment tribunal. You can contact her here, or any other member of our employment team, in relation to the implications of absence and disability for your business.