No duty to make reasonable adjustments until the employee is fit to return to work
The EAT has ruled that an employer's duty to make reasonable adjustments for a sickness absent employee does not arise until the employee informs the employer of their intention to return to work or shows some willingness to return to work if adjustments are made.
In that case, the Claimant worked for the Department for Work and Pensions (DWP) as an administrative officer. In January 2010, she submitted a medical certificate complaining of stress.
At the beginning of February, she provided another medical certificate stating that she remained unfit for work and which made no suggestion of a possible return if any adjustments were made. Later that month she had a meeting at DWP to discuss her situation at which she was offered administrative assistance duties and part-time hours for four weeks to support her return. The Claimant said that she would speak to her doctor about it, but did not discuss the issue with DWP again.
In May 2010, DWP gave the Claimant notice of dismissal, explaining that it could no longer support her absence. Under DWP's attendance policy, it was rare that absences would be supported if there was no indication of a return to work within six months.
The Claimant brought a tribunal claim alleging that DWP had failed to make reasonable adjustments on the basis that the offer of a four-week phased return to work was not long enough.
The tribunal rejected her claim, ruling that DWP's duty to make reasonable adjustments had not been triggered because the Claimant had not informed DWP of a return to work date or shown any willingness that she would return to work if adjustments were made. The tribunal observed that the phased return to work suggested by DWP could not be implemented until the Claimant indicated she was going to return to work.
The EAT rejected the Claimant’s appeal, saying that the tribunal had been entitled to decide that the duty to make reasonable adjustments was not triggered because the Claimant had not become fit to work even if adjustments were made.
The implication of this ruling is that an employee must be in a position to return to work, in some capacity, before the duty to make reasonable adjustments in the form of a phased return to work is triggered.
It should, however, be remembered that many claims based on dismissal for poor attendance are brought as claims arising from disability or indirect disability discrimination, and not as a failure to make reasonable adjustments, and in those circumstances employers must be able to justify reliance on breach of their attendance policy.
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