Not fit for adjustment
Labour & European Law Review Weekly Issue 411 18 March 2015
Under disability discrimination legislation, employers must make reasonable adjustments if one of their policies or a physical feature of their premises places a disabled person at a substantial disadvantage compared to people who are not disabled. In Doran v Department for Work and Pensions (DWP), the Employment Appeal Tribunal (EAT) held that the duty is only triggered once the disabled person has indicated that they are fit enough to return to work.
Ms Doran, an administrative officer for the DWP, went off sick in January 2010 with a stress-related illness caused by problems at home, not at work. Further to an assessment by telephone in February, occupational health reported that she had a mental health condition which meant that she was not stable enough to return to work. After a review meeting at which her manager suggested that she return to work part time on administrative assistant duties with no loss of salary, she was signed off again by her GP for four weeks.
After Ms Doran failed to attend a review meeting at the end of March, her manager wrote to her saying that she was going to refer the case to a more senior manager (Mr Campbell) to decide whether she should be demoted or have her contract terminated. Mr Campbell asked her to attend a meeting at the end of April, but she was advised by her GP that this was not a good idea. Mr Campbell then wrote to her asking when she thought she might be able to return to work. She explained she would only be able to return when her GP considered her fit enough to do so and therefore could not provide a date.
The DWP’s sickness policy stated that managers could consider dismissal when someone had been off sick for three months, unless they could indicate that they would return to work within a further three months. After six months’ absence, it was rare for the department not to dismiss. As Ms Doran had been off work for more than three months by this stage and could not say when she might return, she was dismissed by letter dated 26 May 2010, although her effective date of termination was not until 1 July.
She claimed (among other things) that the DWP had failed to make reasonable adjustments, such as redeploying her somewhere else; reducing the number of days she had to work; preparing a structured rehabilitation plan; or reducing the number of hours she had to work per day.
The tribunal held that the DWP did not discriminate against Ms Doran by failing to comply with the duty to make reasonable adjustments since the duty had not been triggered.
This was because the adjustments she put forward could only be regarded as reasonable once she was back at work, or once she had at least indicated when she might be able to return to work. Instead she had not indicated when she might return and indeed had painted a picture which inferred that she was not coming back any time soon.
The EAT held that the tribunal was entitled to hold, in light of the authorities, that the duty to make reasonable adjustments was not triggered as Ms Doran had not given any indication that she was fit to return even if adjustments were made for her. The medical certificates she submitted also indicated that she was not fit for work.
It agreed with the tribunal that the onus was on Ms Doran to initiate a discussion about the offer of returning on administrative assistant duties and part-time hours for four weeks once she was fit enough to work. As she did not become fit enough until September 2010, which exceeded the six month period, the DWP was entitled to consider dismissal under its sickness policy.
The EAT were no doubt influenced in this case by the fact the employer had offered adjustments, placing the ball firmly in the claimant’s court. However, the finding on the timing of adjustments is unfortunate for future claimants who need reasonable adjustments to facilitate a return to work, because it places the onus to offer a return date on the claimant before the duty to make reasonable adjustments arises.