Under section 4A of the Disability Discrimination Act 1995, employers have a duty to make reasonable adjustments to any provision, criteria or practice or any physical feature of the employer's premises which put a disabled person at a substantial disadvantage in comparison with people who are not disabled.

In Home Office v Collins (IDS 788), the Court of Appeal said that, as Ms Collins had not been fit to return to work at all, the Home Office had not failed in its duty to make reasonable adjustments by letting her return on a part time basis.

 

What were the basic facts?

Elaine Collins, an insulin dependent diabetic, started work for the Home Office in May 2000 on a 12-month probationary period. She was off work for 31 days up to August 2001, although none of the absences were said to be due to her diabetes.

As a result, the Home Office extended her probationary period by another six months. She then went off sick, in August 2001, with stress and depression, and was referred to the occupational health service (OHS). Its report, in January 2002, stated that it would be another six to eight weeks before she could return to work.

However, she did not return and on 19 April 2002, she was sent a "Minded to Dismiss" letter "on the grounds of failed probation due to unsatisfactory attendance".

She then attended an interview at which it was agreed to obtain a further report from the OHS in August 2002. This said she was still suffering from anxiety, and recommended that she return on a part time basis in three to six months.

The Home Office sent the report to Ms Collins on 4 September, with a letter stating that her case would be reviewed and a decision made on her future employment. Her contract was subsequently terminated on 25 October.

She then lodged a claim that her employer had failed to make a reasonable adjustment by not providing a phased return to work or part-time employment.

 

What did the tribunals decide?

The employment tribunal decided that the Home Office had been justified in refusing to confirm her employment because of her unsatisfactory attendance, which was for reasons other than her disability.

It said that it was reasonable for the Home Office to rely on a policy that it would not offer a phased return or part-time work until the employee could indicate a definite date for her return to work.

The EAT disagreed and held that the tribunal had failed to give a reason for its conclusion that "the unfavourable treatment was justifiable". As for its failure to make a reasonable adjustment, the EAT said the tribunal could not rely on a policy which itself was unsustainable.

 

What was the view of the court of appeal?

The Court of Appeal overturned the decision of the EAT, stating that as Ms Collins had not been fit enough to return to work at all, the issue of pursuing a phased return did not arise.

Nor was it incumbent on the Home Office to provide further financial or operational reasons why it should have extended the period before which a decision to dismiss would be taken, as she had already been off for a long time.

It said that there had not been a breach of the duty to make a reasonable adjustment and that "...the employment tribunal [was] entitled to find that the employer had taken such steps as were reasonable, in all the circumstances of the case."

It concluded that, although the reasoning of the tribunal was flawed in places (for instance, its use of a like-for-like comparison), the dismissal was fair for the substantive reason of capability.

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