In DLA Piper’s latest case report, the Employment Appeal Tribunal (EAT) held that the duty to make reasonable adjustments was not triggered where the employee had given no indication that she would be fit to return to work.
Duty to make reasonable adjustments
Doran v Department for Work and Pensions
Ms Doran was employed by the Department for Work and Pensions (DWP) as an administrative officer. Her employment began in May 2009 and her initial fixed-term contract was extended until 4 November 2010.
In January 2010, Ms Doran was signed off work with stress. Initially, Ms Doran provided a sick note and asked whether part-time hours could be considered in the future. This was followed by a further sick note in February 2010 that made no mention of a possible return to work.
In accordance with the DWP’s attendance policy, Ms Doran attended a meeting with her line manager to discuss her absence. They told her that she could be offered administrative assistance duties and part-time hours for four weeks to support her return.
Ms Doran agreed that she would discuss this with her doctor. However, she did not discuss the issue with the DWP again.
Under the DWP’s attendance policy, absences would not be supported if there was no indication that the employee would be able to return to work within six months. On this basis, DWP dismissed Ms Doran on the grounds of capability on 26 May 2010.
Ms Doran brought various claims against DWP in the employment tribunal, including a claim that it had failed to make reasonable adjustments under s.4A of the Disability Discrimination Act 1995.
Although this case was determined under the Disability Discrimination Act 1995, as the relevant legislation at the time, it is important to note that the reasonable adjustment provisions in the Equality Act 2010 are the same.
Employment tribunal decision
At first instance, the employment tribunal indicated that a phased return to work could not be implemented until Ms Doran had indicated that she was going to return to work.
The employment tribunal pointed out that the DWP had discussed a phased return or returning to work at a lower grade at first, but the ball was in Ms Doran’s court in terms of discussing these suggestions with her GP and reverting to the DWP, which she did not do.
On appeal, the EAT held that the employment tribunal had been entitled to find that the duty to make reasonable adjustments had not been triggered because Ms Doran did not become fit to work even if reasonable adjustments could be made to her employment.
The EAT went further and also agreed that it was for Ms Doran to tell her employer when she became fit to do any work. Ms Doran’s appeal was therefore unsuccessful.
Implications for employers
The decision that Ms Doran was found to have responsibility for informing her employer when she would be able to at least do some work may not sit comfortably with all employers. The Equality and Human Rights Commission’s Employment statutory code of practice highlights that it is good practice for an employer to ask a disabled employee about any potential adjustments that could be made or should be considered.
On this basis, employers should still be proactively managing employee absence, checking on progress during periods of leave, discussing when employees will be fit to return to work whether or not any reasonable adjustments should be considered. It is also important to ensure that any proposed adjustments are agreed with the employee before they are actually implemented.
However, it is worth being aware that, strictly speaking, for an employer’s duty to make reasonable adjustments to be triggered, there needs to be an indication that the employee may be fit to return to work at some point.