Case law update: Disability discrimination

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In the case of Mr S Olenloa v North West London Hospitals NHS Trust the EAT confirmed that the duty to make reasonable adjustments may, in certain cases, continue even when the employee is on sick leave.

Facts

Mr Olenloa (“Mr O”) was a clinical team leader nurse within the NHS Trust (“NHS”). During his employment Mr O lodged several grievances alleging that he was a disabled person and that the NHS had failed in its duty to make reasonable adjustments to accommodate his disability. His grievances formed the substance of later claims (he lodged three employment tribunal claims in total) against the NHS.

The issue before the Employment Tribunal and the Employment Appeal Tribunal (the EAT) in the current case was whether Mr O’s claim regarding the NHS’s failure to make reasonable adjustments was out of time since he went off sick more than three months before he brought his tribunal claim.

Claims must generally be brought within three months of the date of the act (or failure to act) that is complained of, although some acts count as continuing acts. The question here was whether or not the NHS had a continuing duty to consider reasonable adjustments when Mr O went off sick.

Decision

At the Employment Tribunal, the Judge said that there was no on-going discrimination or failure to make reasonable adjustments as Mr O was ‘simply unable to be at work’. However, the EAT was concerned that the Employment Tribunal had not addressed the issue of whether ‘it was the very failure to make adjustments which kept the Claimant away from work’. Had it been so, then Mr O’s claim would succeed. It therefore sent the case back to the Employment Tribunal for it to examine the evidence as to whether that Mr O could have come back to work, had the NHS made reasonable adjustments.

Comment

The case is a useful reminder of your ongoing duty to consider if you can make reasonable adjustments to enable an employee who is off sick to return to work.

However, it can often be very difficult to know what this means in practice for individual employees. HR professionals can be understandably nervous about tackling this and other issues surrounding long term absence, such as how to go about speeding up the return to work of an employee, knowing when it is safe to terminate employment or telling an employee who wants to return that they are not fit enough to do so.

How we can help – National seminars

We are running a series of national seminars in November and December this year, Managing sickness & absence: taking control in challenging times.

Combining our HR, legal and occupational health expertise, these seminars will equip delegates with the knowledge and strategies to deal with ill health and absence confidently, proactively and effectively. Delegates will also receive ‘tools’ to take away to help them deal with key issues. The programme includes a Q and A session with the key note speaker, Professor Sayeed Khan (EEF’s Chief Medical Adviser), which will give you the opportunity to get his view on issues you are currently grappling with.

Click here for more information.

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