Employers are required to make reasonable adjustments to mitigate or prevent disadvantages that disabled employees would otherwise suffer as a result of the operation of a criterion, provision or practice. What amounts to a reasonable adjustment has been the subject of a significant amount of case law since the Disability Discrimination Act 1995 (DDA) came into force.
Facts
Mr Spence (‘S’) was an IT Manager and had worked for Intype Libra Ltd (IL) since October 1999. Although S did occasionally work from home, the bulk of his work was site based. In August 2004, S started to suffer from severe pains in his arms and was subsequently signed off work.
There followed significant discussion between IL and S concerning S’s possible return to work and the capacity in which he might be able to do so. Although S undertook a small amount of work from home and indicated on a number of occasions that he might be able to return to work, he never did. S was eventually dismissed by IL in August 2005.
S brought tribunal proceedings alleging unfair dismissal and breach of the DDA. In particular, S argued that IL had failed to make a reasonable adjustment by failing to obtain and consult with him about an up-to-date medical report prior to dismissing him.
Although the tribunal held that S had been automatically unfairly dismissed, due to a failure to follow the statutory dismissal procedure, it rejected S’s DDA claims. The tribunal found that IL had made considerable efforts to accommodate S’s needs and it could identify no other reasonable adjustments that IL should have made which could have secured S’s continuing employment.
S appealed to the EAT on the dismissal of his DDA claims.
EAT’s findings
In dismissing S’s appeal, the EAT asserted that the question for a tribunal to consider was not whether an employer was aware of its duty to make reasonable adjustments, but what reasonable adjustments it had in fact made, or failed to make.
The EAT reasoned that to do otherwise would mean that no matter how far an employer had gone to comply with the requirement to make reasonable adjustments, if it had not consulted with an employee over what adjustments should have been made, it would be in breach of this duty.
In the EAT’s view if the duty of reasonable adjustment was intended to cover obtaining information, this would have been expressly referred to in the legislation.
The EAT also held that whilst it is certainly advisable for an employer to obtain a written medical report in order to better inform itself, this act in itself could not remove any disadvantage that the employee might be suffering. Therefore, even though no up-to-date medical report had been obtained, this was not a failure to make a reasonable adjustment.
In light of the fact that there are conflicting decisions in this area, and given the perceived importance of the point, the EAT gave S permission to appeal to the Court of Appeal. As yet, it is unclear whether S will do so.
Comment
Notwithstanding the EAT’s finding in this particular case that a failure to obtain a medical report and consult with an employee did not of itself amount to a failure to make reasonable adjustments under the DDA, it should borne in mind that there is conflicting case law in this area and the decision is therefore ripe to challenge.
In any event, a prudent employer will always seek to obtain a medical report on an employee who is on long-term sick leave, and consult with that employee on the contents of the report, prior to making any major decision in relation to that employee’s employment.
Firstly, because it is a necessary step to take to ensure the employer is fully informed; and secondly because in many circumstances where an employer is considering terminating an employee’s employment by reason of ill health/capability, a failure to obtain and up-to-date medical report, or properly consult with the employee, will render a potentially fair dismissal unfair.