Request for reinstatement following resignation – a reasonable adjustment?

The duty to make reasonable adjustments for disabled employees and applicants arises where a disabled person is put at a substantial disadvantage due to the working environment, both physically and practically, when compared to someone who is not disabled.  The obligation was first introduced in the Disability Discrimination Act 1995 and this has been retained in the Equality Act 2010.  Where the duty arises, an employer must consider ways in which it may change the working environment to eliminate the disadvantage. 

Adjustments come in all kinds of shapes and sizes.  Physical adjustments can be simple and inexpensive including providing specialist equipment such as visual aids to assist the partially sighted or an adapted keyboard for someone with arthritis.   Adjustments may also be made to the employer’s actual premises, for example, to facilitate disabled access by providing lift or ramp access.  Other adjustments may include a change to working practices such as allowing time off for appointments or treatments, or shorter working hours where a consequence of the disability may be fatigue. 

Whether an adjustment is reasonable is often fact sensitive and will depend on the circumstances in each individual case, although the size and resources of the employer will be relevant.  An employer with greater resources and many employees will be expected to go further than, say, a small high street retailer.  The Equality & Human Rights Commission (EHRC) provides some guidance which outlines factors that an employer should consider when considering whether an adjustment will be reasonable, however this decision will ultimately be made by the Tribunal. 

Recently, the Employment Appeal Tribunal in Hinsley v Chief Constable of West Mercia Constabulary has decided that it may be a reasonable adjustment for an employer to reinstate an employee after they have resigned.  Mrs Hinsley was a probationary police officer for West Mercia Constabulary and she suffered from depression.  Before her depression had been diagnosed, she gave notice of her resignation on 20 December.  Her superior did not process this immediately and asked her to reconsider.  However, two weeks later she wrote a second resignation letter.  There was some delay in this being processed, but this eventually took effect on 17 January.  On 26 January, Mrs Hinsley was diagnosed with depression.  She contacted her employer requesting reinstatement on the basis that her depression had caused her to make a hasty decision in resigning.  The Constabulary felt that it was unable to do so and it was found that its refusal to reinstate Mrs Hinsley amounted to a breach of the duty to make reasonable adjustments.

Although there are some exceptions (covered in our article here) an employer does not usually have an obligation to allow an employee to retract a resignation.  The Hinsley case does not mean that all requests for reinstatement following a resignation must be accepted by an employer.  It is likely that the greater the delay between resignation and the request for reinstatement, the less reasonable the adjustment will be.  Also, it may not be reasonable to allow a retraction should recruitment for a replacement have already taken place.  It is assumed that whether the employee should be reinstated will also depend on the nature of the disability.  In this case, Mrs Hinsley’s disability i.e. her depression can clearly be linked to her hasty decision to resign.

Nevertheless, in the event that an employer receives such a request, then an employer should consider whether the employee is disabled and what the reason for the resignation was in the first place.  This case is illustrative of how wide ranging the duty potentially is and how varying an adjustment can be. 

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]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice.  The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.