Labour & European Law Review Weekly Issue 350 18 December 2013
The law says that employers have to make reasonable adjustments if a provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage in comparison with someone who is not disabled. In Secretary of State for Work & Pensions (Jobcentre Plus) v Higgins, the Employment Appeal Tribunal held the employer was not in breach of the duty by failing to build in a review period to an employee’s phased return to work.
Mr Higgins, a part time administrative officer in a benefits delivery centre in Liverpool since 1979, went off on long term sick leave in June 2009. His GP deemed him fit for work at the beginning of August 2010, but recommended a phased return over three months.
Following a meeting with Jobcentre Plus the same month, Mr Higgins was told that he could gradually return to work over 13 weeks. He said that was too short and asked for a phased return of up to 26 weeks. His employer refused to extend the period, saying that if he had not managed to return to his original working pattern by the end of the 13 weeks, he would have to discuss the possibility of changing his contract with his manager.
Mr Higgins refused to return to work unless his employer agreed to an extension of the 13 week period. HIs employer dismissed him. After his appeal against dismissal failed, he claimed unfair dismissal and discrimination on the ground that his employer had failed to make a reasonable adjustment.
The tribunal held that although it was reasonable for Jobcentre Plus to specify a 13 week period (subject to reviews), the fact that it expressly rejected the possibility of a further period to allow Mr Higgins to return to work on his normal hours was not reasonable.
As Jobcentre Plus did not amend its offer before Mr Higgins was dismissed it was in breach of the duty to make “reasonable adjustments”.
The EAT considered the PCPs identified by the tribunal - “the requirement… to undertake work” and the 13 week rehabilitation period - and held that although PCPs can be widely drawn, they should be linked to the disadvantage.
In this case, the wide PCP did not fit Mr Higgins’ circumstances as he was not saying he could not return to work but that he could only return on reduced hours. The correct PCP therefore was the requirement to work his contractual 23 hours per week.
The EAT also held that the 13 week rehabilitation period was not a PCP. In particular, it did not put Mr Higgins at a substantial disadvantage but rather mitigated against the requirement to work his contractual hours.
By failing to identify the correct PCP, the tribunal had not properly considered the substantial disadvantage that Mr Higgins was put to nor how the adjustment would avoid the disadvantage. In particular, the 13 week period provided that Mr Higgins work the reduced hours he himself had put forward. Nor had the tribunal set out what disadvantage Mr Higgins had been subjected to because the employer had not made clear at the beginning that they would carry out a review and if necessary extend the period.
If an employer grants reduced hours, the EAT was not clear why they should also give an explicit guarantee of future reviews. If, at the end of the period, the employee continued to be under a substantial disadvantage, the duty to make an adjustment would still apply and could be judged at that time.
As the tribunal had failed to address how far the step or steps which were in issue would have been effective in preventing any substantial disadvantage caused by the PCP, the EAT allowed the appeal and remitted the case to the same tribunal to reconsider these points.