The duty to make reasonable adjustments comes from the Equality Act 2010 (and before it, the Disability Discrimination Act 1995). Where an employee meets the definition of disability and that disability puts them at a disadvantage, the employer is under a statutory duty to make reasonable adjustments to avoid that disadvantage.
The duty to make reasonable adjustments is one of the key ways in which the law protects disabled employees. In the recent case of Doran v DWP the Employment Appeal Tribunal was asked to consider whether the DWP had a duty to make reasonable adjustments with regard to an employee who was not fit to return to work. Although the case has only recently been decided, the events had occurred back in early 2010 before the Equality Act applied, and therefore the relevant law was the Disability Discrimination Act – although the reasonable adjustments provisions are the same.
Mrs Doran was signed off with stress and when she submitted her first medical certificate she asked if part-time work might be available in future. She later submitted a further medical certificate with no mention of being able to return if adjustments were made.
The DWP’s policy was that absences would not be supported if there was no indication of a return to work within 6 months. Mrs Doran’s line manager met with her to discuss her absence after she had been absent for around 4 weeks and explained that the DWP would be able to offer her part-time work as a phased return for 4 weeks. Mrs Doran said that she had been told not to be bullied into returning to work too soon, but that she would discuss the proposals with her doctor. She did not discuss the situation with the DWP after that. Over 3 months later the DWP dismissed Mrs Doran due to her absence.
Mrs Doran brought a number of claims including a claim that the DWP had failed in its duty to make reasonable adjustments.
The Tribunal found that Mrs Doran did meet the definition of disability and that the DWP’s absence policy did put her at a disadvantage. However, they did not agree that the duty to make reasonable adjustments had been breached. This was because Mrs Doran had not given the DWP any indication of whether or when she would be fit to return to work.
Mrs Doran appealed to the Employment Appeal Tribunal (EAT) but they upheld the Tribunal’s decision. The duty had not been triggered because there had been no suggestion that Mrs Doran was fit to do any work. The EAT also agreed with the Tribunal that it had been for Mrs Doran to tell her employer when she became fit to do some work. This is surprising because the duty to make adjustments falls upon the employer and it is considered best practice for the employer to ask the employee whether there are any adjustments they feel the employer should consider.
So what lessons can employers learn from this case? Although Mrs Doran was found to have had responsibility to tell her employers when she would be able to do at least some work, in practice employers would still be well advised to take the initiative and ask absent staff about their progress, so as to proactively manage employee absence. It is however worth being aware that strictly speaking the duty to make reasonable adjustments does not apply if you have no indication that the employee will be fit to do any work whatsoever.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).