Labour & European Law Review Weekly Issue 391 15 October 2014
The law states that employers have a duty to make reasonable adjustments in certain circumstances. In Howorth v North Lancashire Teaching Primary Care Trust, the Employment Appeal Tribunal (EAT) held that the Trust could not be in breach of the duty to make reasonable adjustments if none of the adjustments would have enabled Ms Howorth to stay at work.
Ms Howorth’s union, Unite, instructed Thompsons to act on her behalf.
Ms Howorth, a health visitor, had worked for the Trust since 1997. In September 2006, her son left home to go to university, her mother broke her leg and her brother-in-law died. In December her husband left her and she was diagnosed with breast cancer and subsequently depression. By April 2008 she was working full time again but in May she learned that a friend had died of breast cancer.
In July 2008 she attended a breast cancer appointment where she talked about the death of her friend. She then went shopping but left without paying, forced her way out of the store and drove away injuring two people.
She was subsequently found guilty of theft, two counts of battery and one of dangerous driving and given a 12-month conditional discharge. Although the Trust accepted the medical diagnosis of automatism and that she had no recollection of the incidents, it dismissed her summarily on 18 November 2009. She claimed unfair dismissal and failure to make reasonable adjustments for her disability (automatism), among other things.
The tribunal found that the Trust’s decision to dismiss Ms Howorth summarily was within the range of reasonable responses open to them. She had been found guilty of serious criminal offences relevant to her employment and there was a risk that the same thing could happen again. She had not therefore been unfairly dismissed.
However, it also found that the Trust did not give “adequate thought to its duties and responsibilities” to make reasonable adjustments to her job in order to keep her in employment. At the remedies hearing the tribunal then looked at the potential adjustments in detail but decided that none of them would have allowed her to remain in employment.
The EAT agreed that the dismissal was fair but disagreed on reasonable adjustments. Having made a finding that the Trust had considered alternatives to dismissal, the tribunal was wrong to hold that the Trust had not “actively considered” the duty to make adjustments. Apart from anything else, this created an obligation that did not exist in law.
The tribunal was also wrong to ask whether the employer had given adequate thought to the adjustments, as the obligation on the Trust was to make adjustments which, looked at objectively, were reasonable.
It also held that the tribunal should have considered at the liability hearing whether any of the adjustments that Ms Howorth proposed were likely to succeed, given that the whole point of a reasonable adjustment is to try to keep employees in work. As it subsequently found that none of the adjustments would have done so, the Trust could not be in breach of the duty.