The reasonable adjustment duty: how far should it go?
Filed under: general 2:20pmIn Salford NHS PCT v Smith the EAT has found that the Trust was not in breach of the reasonable adjustment duty under the Disability Discrimination Act 1995 because it had failed to offer light duties or a career break to Ms Smith who suffered from chronic fatigue syndrome. The DDA, and subsequently the Equality Act, imposes an obligation on employers to make adjustments for the disabled where the effect of the adjustments would mitigate the effects of the disability. In this case the employer was able to demonstrate that by offering light duties or a career break this would do nothing to assist Ms Smith’s return to work. The aim of the relevant provision in the legislation is that adjustments should facilitate the employee’s ability to remain in work. Neither of the adjustments proposed could, in the view of the EAT, amount to adjustments because they would not assist. In this case Ms Smith had declined being moved into alternative roles and was offered training. She did not take up either option. She later claimed constructive dismissal and disability discrimination.
At first instance a tribunal held that the trust had breached its duty to make reasonable adjustments because a provision, criteria or practice (PCP) prevented her from working: in this case the inability to perform her full role in the contracted hours. The Employment Tribunal also found her to have been unfairly constructively dismissed.
The EAT overturned the decision on appeal both in relation to the breach of the reasonable adjustment duty (disability discrimination) and the constructive dismissal. The EAT found that the Trust had behaved appropriately. Ms Smith had not engaged in any of the Trust’s efforts to help her. The Trust had ascertained that there was no job she was capable of doing or that she was prepared to it. It had therefore explored the reasonable adjustment duty. Ms Smith had also declined to attend two meetings which were designed to discuss possible adjustments for her which might assist. On the matter of a career break the EAT held that it would be “highly irregular and contrary to proper and recognised industrial practice” to offer Ms Smith a career break. The EAT also found that there had been no constructive dismissal. The Trust would have been entitled to dismiss for capability which the EAT says is “standard and reasonable in the circumstances“.
The case is interesting because it highlights that the reasonable adjustment duty on the employer is designed to enable keeping a long-term sick employee on the payroll and in work. It is not supposed to make the employee better and if the employee cannot do any work the employer is entitled at a certain point to determine the relationship by means of a capability dismissal. It is important for employers to follow a stringent and thorough procedure (including medical examination and evidence) before dismissing for capability but it is possible. As ever, advice should be sought urgently. The stakes are high in disability discrimination claims and even more so if it is unlikely that the employee will be able to work in the future. Be warned.
It is also interesting that the EAT found that a career break (without pay) was not a solution. The guidance to the legislation suggests that it may be a reasonable adjustment to offer a career break. The EAT’s point on this is that the employee would be barred from being paid under a PHI scheme or from the possibility of ill-health retirement because they would be having a career break rather than being off sick long-term. Their logic makes every good sense.






