Whilst off sick, she asked if she could work part-time. Her line manager met with her to discuss the situation. Miss Doran stated that she would not be bullied into returning to work until she was ready as advised by her GP. On occupational health’s suggestion, the DWP offered Miss Doran part-time hours and administrative assistance for a four-week phased return to work. Miss Doran stated that she would seek medical advice but did not respond.
Miss Doran was given notice of dismissal on 26 May 2010. DWP’s attendance policy provided that where there was no suggestion that an employee would return to work within six months the DWP would no longer support the absence. Miss Doran’s absence was putting a strain on the business.
Bringing claims against the DWP, Miss Doran argued that she had been unfairly dismissed and that there had been a failure to make reasonable adjustments under s4A of the Disability Discrimination Act 1995 (DDA 1995). She argued that it was unreasonable to demote her resulting in a reduction in salary and that the offer of a four-week phased return was not reasonable given her length of sickness absence.
The Tribunal concluded that she had been unfairly dismissed and awarded her £1,959, having applied a 75% polkey deduction. The Employment Tribunal rejected her discrimination claim. Miss Doran had not given any signs of a possible return to work at any time. Despite the rejection, the Employment Tribunal found that the DWP’s attendance policy was discriminatory as it placed Miss Doran at a substantial disadvantage compared to non-disabled persons. Her attendance levels were poor. The DWP considered that it had allowed Miss Doran a reasonable timeframe of six months, in line with its sickness absence policy, for returning to work. The Tribunal noted that Miss Doran was unlikely to return to work within the six months and there had been no reason to extend the timeframe in the policy for Miss Doran. She appealed against the decision.
The Employment Appeal Tribunal (EAT) has held in this case that an Employment Tribunal was entitled to find that an employer’s duty to make reasonable adjustments did not arise where a sick employee had not given any indication that she would return to work. The employee showed no signs of returning to work and her medical certificates continued to state that she was unfit for work. Miss Doran would not be fit for work even if adjustments were made.
This case demonstrates that for the reasonable adjustments duty to trigger, there must be a reasonable prospect that the employee will return to work. In this case, the Employment Tribunal suggested that Miss Doran should raise her concerns regarding the demotion and adjustments when she was fit to return. The EAT did not criticise this suggestion despite the fact that there is no onus in law on the disabled employee to make such suggestions. The duty is on the employer.
This case was decided under the DDA 1995, not the Equality Act 2010 (Eq Act 2010). Had this claim been brought under the Eq Act 2010 Miss Doran would have had an opportunity to bring a section 15 “discrimination arising from disability” claim in respect of her dismissal which may have proved more fruitful. She may have been able to argue unfavourable treatment because of something arising in consequence of her disability and the DWP would have been required to justify such a dismissal.
Employers will no doubt welcome this authority as it suggests a more reactive rather than proactive approach can be taken to considering reasonable adjustments. However, the consideration and agreement to make reasonable adjustments will often be helpful in getting the employee back to work sooner rather than later. It can sometimes be difficult for employees to indicate when they may be fit to return particularly if they are undergoing treatment and the outcome cannot be predicted. It is good practice for an employer to ask an employee about possible adjustments and to seek agreement to those adjustments.