Labour & European Law Review Weekly Issue 242 03 November 2011
Employers are required, under the disability discrimination legislation, to make “reasonable adjustments” under certain circumstances. In Leeds Teaching Hospital NHS Trust v Foster, the Employment Appeal Tribunal (EAT) said that the adjustment just has to offer “a prospect” of alleviating the disadvantage facing the disabled employee, not a “real prospect”.
The member’s union, Unite the Union, instructed Thompsons to act on his behalf.
Mr Foster had worked in the Trust’s security department for many years but in October 2006 he went off sick with stress. He subsequently lodged a grievance of bullying and harassment against his manager, but this was dismissed in September 2007.
In January 2008 he agreed to return to work because he thought (wrongly, as it turned out) that he was to be redeployed to another department. He was then placed on the redeployment register for three months in June, but was unable to take up the only suitable job offered to him.
In September 2008, his manager left and it was decided he could return to the security department in October but this didn’t happen because of continuing concerns about the impact on his health. He was deemed unfit for work in November and was dismissed in February 2009.
He claimed disability discrimination, among other things.
The Tribunal said that the requirement for Mr Foster to work within the security department placed him at a substantial disadvantage. The cause of his disability (stress) was directly related to his work and he could not be expected to return until that had been resolved. As the Trust had never thought it necessary to find out what had caused it, there was never any chance of that happening.
It also ruled that the Trust should have made a reasonable adjustment by placing Mr Foster on the redeployment register in January 2008 when he was ready to return to work.
Had it done so, there was a “real prospect” that he would have returned to work with appropriate support.
The Trust appealed, arguing that putting him onto the register earlier was not a “reasonable” adjustment because there was no evidence from which the Tribunal could conclude there was a “real prospect” that he would have been redeployed.
The EAT said that, following the decision in Cumbria Probation Board v Collingwood, the Tribunal did not have to find that there was a “real prospect” of Mr Foster returning to work by placing him on the register earlier; just that there was “a prospect” of that happening.
As the Trust was a large employer with about 15,000 employees, 5,000 or so of whom worked at the location where Mr Foster was based, it was open to the Tribunal to conclude that there was a good prospect that it might have found a suitable post for him in the first six months of 2008.
The burden of proving that that was unlikely to happen was down to the employer and in this case, the Trust failed to do so as it didn’t produce any evidence to the contrary.
This case should be a reminder to claimants’ representatives to consider any failures to make reasonable adjustments the employer may have made before dismissal. In this case, the Tribunal found that the employer failed to offer the claimant redeployment In January 2008, over a year before he was eventually dismissed.