Labour & European Law Review Weekly Issue 243 10 November 2011
Employers must make reasonable adjustments for disabled employees if a provision, criterion or practice (PCP) puts them at a disadvantage in comparison to those who are not disabled. In Salford NHS Primary Care Trust v Smith, the Employment Appeal Tribunal (EAT) said that it was not a reasonable adjustment to expect the Trust to find some form of light work for a former employee or to allow her to take a career break.
Ms Smith, who worked with young people using the Trust’s services, went off sick in March 2007 with a chest infection. She was diagnosed in September with chronic fatigue syndrome. While she was off work her job effectively ceased to exist and she had a series of meetings with her manager over the next year to decide what she might do when she returned to work.
She asked for a career break which the Trust refused. It asked her to consider a number of other posts, but she said none were suitable. It also offered her IT training so that she could do administrative work, but she was unwilling to do this. Towards the end of May 2008, she wrote to complain that no progress was being made to facilitate her return to work.
She then failed to attend two meetings in May and June 2008 to discuss her future. The Trust wrote again towards the end of June inviting her to another meeting and making clear that termination of her employment was on the cards.
She wrote back on 23 June saying that she had resigned. She claimed constructive unfair dismissal and disability discrimination, on the ground that the Trust had failed to make reasonable adjustments to allow her to return to work.
The Tribunal concluded that the PCP in this case was the Trust’s expectation that Ms Smith would do her full role within her contracted hours. This placed her at a substantial disadvantage because she was unable to multi-task, deal with clients or set up emotional barriers. She would, effectively have to climb a “mountain” if she were to do her job.
Given the size of the Trust and the resources available to it, the Tribunal said that it should have found alternative light work for Ms Smith to help her get back to work, as the Trust’s own occupational health doctor had recommended.
By not doing so, it had failed in its duty under the reasonable adjustment provisions of the disability discrimination legislation and had therefore discriminated against her.
The EAT disagreed.
It said that it was not a reasonable adjustment to expect the Trust to find some form of light work for her or allow her to take a career break, for the simple reason that neither adjustment would have prevented the disadvantage caused by the PCP and would not have helped her to return to work.
As “reasonable adjustments are primarily concerned with enabling the disabled person to remain in or return to work with the employer”, these proposals did not satisfy the requirements under the law.
It concluded that: “Adjustments that do not have the effect of alleviating the disabled person’s substantial disadvantage ... are not reasonable adjustments within the meaning of the Act. Matters such as consultations and trials, exploratory investigations and the like do not qualify”.