Case update (4): Disability discrimination – reasonable adjustments

Summary: Is an employer’s duty to make reasonable adjustments for a disabled employee triggered even where an employee is too ill to return to work in any event?

No, says the EAT in Doran v Department for Work and Pensions available here.

Facts: Miss Doran began working for the Department for Work and Pensions (the DWP) as an administrative officer in May 2009. On 12 January 2010, Miss Doran went on sickness absence owing to stress. She sent a medical certificate and asked if part-time hours could be considered in the future. At the beginning of February 2010, Miss Doran provided another medical certificate stating that she was unfit for work, which made no suggestion of a possible return if adjustments were made.

In mid-February, Miss Doran met with her line manager to discuss the situation. Miss Doran stated that her doctor had advised her not to be “bullied” into returning to work before she was ready. In response, the line manager stated that Miss Doran could be offered administrative assistance duties and part-time hours for four weeks to support her return. Miss Doran said that she would speak to her doctor about it, but did not discuss the issue with the DWP again. On 26 May 2010, the DWP gave Miss Doran notice of dismissal, explaining that it could no longer support her absence. Under the DWP’s attendance policy, it was rare that absences would be supported if there was no indication of a return to work within six months.

Miss Doran brought various Tribunal claims, including one that the DWP had failed to make reasonable adjustments and had discriminated against her on the basis of her disability. In her view, the offer of a four-week phased return was not long enough, considering that she had been unwell since January 2010. Further, she did not think that it was reasonable for the DWP to demote her and thus reduce her salary.

The Tribunal rejected Miss Doran’s disability discrimination claim. It held that the DWP’s duty to make reasonable adjustments had not been triggered because Miss Doran had not informed the DWP of a return date or given any other sign that she would be returning to work at a particular time. The Tribunal noted that a phased return to work suggested by occupational health could not be implemented until Miss Doran indicated she was going to return to work. In its view, she would not have become fit for work within six months, after which the DWP would normally consider dismissal. There was no known reason to extend this time-frame for Miss Doran.

Miss Doran appealed to the EAT. The EAT rejected Miss Doran’s appeal. The Tribunal had been entitled to find that the duty to make reasonable adjustments was not triggered because Miss Doran had not become fit to work even if adjustments were made. Further, it was for Miss Doran to come back to the DWP on the issues of a lower grade role with a phased return when she became fit to do some work.

Implications: This is a helpful case for employers – that generally no duty to make reasonable adjustments will arise where the employee is certified as unfit for any work and has given no indication of when he or she might be able to return to work.