Trigger for the duty to make reasonable adjustments

Our employment team report below on a new reasonable adjustments case.

A recent EAT case (Doran v Department for Work and Pensions) indicates that an employer’s duty to make reasonable adjustments is generally only triggered where a disabled employee indicates that they might be fit to return to work at some point.

In this case, Miss Doran was employed by the DWP. She was signed off with stress in January 2010. She remained on sick leave until she was dismissed in May 2010 on the grounds that her absence could no longer be supported. During her sick leave the DWP offered Miss Doran reduced duties and hours during a 4 week phased return to work. However, Miss Doran did not pursue this offer and her medical certificates continued to show that she was not fit for any work.

Following her dismissal, Miss Doran brought various claims against the DWP, including a failure to make reasonable adjustments. She claimed that the offer of the 4 week phased return was not reasonable.

The EAT agreed with the Tribunal that the duty to make reasonable adjustments was not triggered in this case because Miss Doran had given no indication that she would be fit to return to work if adjustments were made. The EAT also held that the Tribunal was entitled to find that it was up to the employee to discuss the offer of a phased return when she became fit to do some work.

This case was decided under the old Disability Discrimination Act 1995. Under the current Equality Act 2010, disabled employees can now bring claims for ‘discrimination arising from disability’ if they are dismissed due to sickness absence. Employers need to be able to objectively justify their actions to avoid liability for such a claim. Therefore, even if no reasonable adjustments are triggered, employers are still at risk of this alternative claim.

Finally, although the EAT upheld the Tribunal decision that the ball was in the employee’s court with regard to reasonable adjustments, employers should not rely on this point. The duty to make reasonable adjustment falls on the employer and as such it is good practice for an employer to consult with a disabled employee about possible adjustments.

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