When deciding whether or not an adjustment intended to remove a disadvantage faced by a disabled employee is reasonable, one of the factors that should be taken into account is how effective it will be. In Leeds Teaching Hospital NHS Trust v Foster, the Employment Appeal Tribunal (EAT) held that where there is a real prospect of an adjustment removing the disadvantage, that would make it reasonable. However, that does not mean that a less than real prospect would not be sufficient to make the adjustment a reasonable one.
Paul Foster worked as a senior security inspector for Leeds Teaching Hospital NHS Trust. In 2006, his relationship with his line manager broke down, and by October that year he was unable to work as a result of stress. He raised a grievance alleging that he had been bullied and harassed by his manager, but the Trust was slow to deal with this. In June 2007, a doctor in the occupational health department advised that Mr Foster’s stress was the result of problems at work and his return would not be possible until these had been resolved. In September 2007, Mr Foster was told that his grievance was dismissed. The Trust’s stance throughout was that this resolved the bullying issue and that Mr Foster’s grievance and his ill health were entirely separate issues.
In January 2008, it seemed possible that Mr Foster could be redeployed to a different department and the doctor confirmed that he was ready to return to work. However, the possibility failed to materialise. Mr Foster was offered one of two posts in the security department and was told that redeployment was not an option. His position was that a return to work in the security department was not possible as the problem that had caused his stress still existed. The Trust recommended that he be dismissed if his ill health prevented him from taking up either of the two posts offered. In the event, however, a decision was taken in June of that year to put Mr Foster on the redeployment register for three months to see if suitable alternative employment became available. An opportunity did arise, but ill health prevented Mr Foster from pursuing it.
By the end of September 2008, the manager at the heart of Mr Foster’s grievance had left and the doctor believed a phased return to work in the security department would be possible. In the event, this did not happen. Mr Foster had concerns he wished to discuss but was told that he would have to raise a fresh grievance. By November 2008, the doctor advised that Mr Foster was unfit for work and his situation was unlikely to change in the foreseeable future. In February 2009, he was dismissed. This decision was upheld at an internal appeal hearing in October 2009, although the appeal panel did find that there had been a ‘failure to manage the sickness absence’ and that the Trust’s attempt to separate this from the investigation of Mr Foster’s grievance had been fatally flawed.
Mr Foster brought claims of disability discrimination and unfair dismissal. The Employment Tribunal (ET) found that the Trust had failed to make a reasonable adjustment in not putting Mr Foster on the redeployment register in January 2008. Had it done so, there was a real prospect of him returning to work. Furthermore, it upheld his claim of unfair dismissal on the ground that no reasonable employer would have rigidly separated consideration of Mr Foster’s absence from work from the reasons for his absence. The Trust appealed and lost in respect of both claims.
With regard to an employer’s duty to make reasonable adjustments, the EAT went on to say that there was, in fact, no need for the ET to go as far as to find that there would have been a ‘good or real prospect’ of Mr Foster being redeployed, had he been placed on the redeployment register between January and June 2008, for the adjustment to be considered reasonable. It would have been sufficient had it found that there would have been ‘just a prospect’ of that occurring.
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Leeds Teaching Hospital NHS Trust v Foster. See http://www.bailii.org/uk/cases/UKEAT/2011/0052_10_1406.html.