Employers have a duty to make reasonable adjustments to prevent a person with a disability from being put at a substantial disadvantage compared with persons who are not disabled. This applies when a provision, criterion or practice (PCP) applied by the employer puts the disabled person concerned at a substantial disadvantage. This could be in the context of enabling a disabled person to remain in work or of facilitating their eventual return to work after a period of long-term sick leave.
In Salford NHS Primary Care Trust v Smith, the Employment Appeal Tribunal (EAT) held that a proposed reasonable adjustment must be one that will prevent the PCP from placing a disabled employee at a substantial disadvantage. Measures that could not have that effect do not amount to reasonable adjustments.
Ms Smith was employed by Salford NHS Primary Care Trust as an occupational therapist at managerial level. Her work entailed regular contact with members of the public. In March 2007, she was off work with a chest infection and was subsequently diagnosed with post-viral fatigue syndrome. She never returned to work. It was accepted that Ms Smith was disabled within the meaning of the Disability Discrimination Act 1995 (DDA).
Numerous meetings were held to explore what work she might be able to do and various proposals were made, but at no time was she deemed fit enough by her medical advisers to undertake any work. Ms Smith requested concrete proposals regarding rehabilitation options and the identification of work she could do. She also raised the possibility of a career break, but the Trust made it clear that it could not agree to this suggestion. In June 2008, having declined to attend at least two meetings, Ms Smith decided she had no choice but to resign. She brought a claim of disability discrimination because the Trust had failed to make reasonable adjustments to help her return to work in some capacity.
The Employment Tribunal (ET) found that the relevant PCP was the expectation that Ms Smith would perform her full rôle within the contracted hours. Her disability put her at a substantial disadvantage because she was unable to multi-task, interact with clients or ‘set up emotional barriers’. She was also unable to work in a noisy environment. In effect, said the ET, she would have to ‘climb a mountain’ in order to perform her rôle. In the ET’s view, given the size and resources of the Trust, attempts should have been made to provide something for Ms Smith to do by way of rehabilitation, even if this was not productive work. A proposal that she carry out light duties for only a few hours a week could have enabled her to ask her doctor to sign her off to return to work. As no such adjustments had been made, there had been disability discrimination.
The Trust appealed on the ground that the steps suggested by the ET did not constitute reasonable adjustments. Ms Smith cross-appealed that her suggestion that she take a career break would have been a reasonable adjustment and the ET had not considered this.
The EAT upheld the Trust’s appeal. Reasonable adjustments are primarily concerned with enabling the disabled person to remain in or return to work with their employer. Matters such as exploratory investigations, consultations and trials, whilst they may serve to inform the employer as to what would be a reasonable adjustment, are not in themselves reasonable adjustments within the meaning of the DDA. Furthermore, neither rehabilitation nor a career break could be considered a reasonable adjustment as these would in no way have mitigated the effects of the PCP.
What amounts to a reasonable adjustment will depend on the individual circumstances in each case. In cases concerning employees who have been on long-term sick leave, reasonable adjustments may include allowing a phased return to work, changing their working hours or allowing them to work from home.
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