Labour & European Law Review Weekly Issue 280 02 August 2012
Under the 1995 Disability Discrimination Act (now part of the Equality Act 2010), employers have to make reasonable adjustments for workers in certain circumstances. In Olenloa v North West London Hospitals NHS Trust, the Employment Appeal Tribunal (EAT) said that the question as to whether the duty applies when someone goes on sick leave must be based on specific findings of fact.
Mr Olenloa went on sick leave on 28 September 2010 with “mixed anxiety and depressive reaction”. He raised a grievance in October and then lodged the first of three Tribunal claims in January 2011, which raised essentially the same issues as the grievance.
These alleged that his employer had failed to make reasonable adjustments for him as a disabled person under the Disability Discrimination Act, and that he had suffered a detriment because he had made a protected disclosure.
He also argued that had his employer made the adjustments he asked for in his grievance, he would not have ended up going off sick in September.
At a pre-hearing review the Tribunal judge said that the issues he complained about in his claim form leading up to 28 September 2010 were out of time.
Although he had been on sick leave, the judge said he could easily have lodged his complaint in time, not least because he had been well enough to submit a detailed grievance in October, a large part of which he had simply copied onto the claim form.
She concluded that: "There is no ongoing discrimination or failure to make reasonable adjustments that I can see, as the claimant simply is unable to be at work”.
The obligation on the employer to make reasonable adjustments therefore came to an end when he went on sick leave.
The EAT, however, disagreed, saying that the judge had failed to address Mr Olenloa’s central argument - that had his employer made reasonable adjustments for him when he requested them, he might not have gone off sick.
It was therefore incumbent on her to make a finding of fact as to whether it was the failure to make the adjustments which had kept Mr Olenloa away from work, or not, and whether he would have been able to remain or return to work, had they been made. This was central to the issue of whether the claims were presented in time.
The judge was also wrong to conclude - without making that finding - that his employer ceased to be under an obligation to make reasonable adjustments for him when he went on sick leave.
“Such findings were necessary to determine whether the complaints of failure to make reasonable adjustments were made in time and if not, whether it was just and equitable to extend time”.
These issues therefore had to be decided at a full hearing of his claims, some of which were, in any event, presented in time.