8 November 2013

Is a Phased Return to Work a Reasonable Adjustment

The duty on employers to make reasonable adjustments for employees with a disability can very often be difficult as it is likely to depend on the resources and size of the employer and the disability in question. Under the Equality Act 2010 (“the Act”), reasonable adjustments may be required where premises, working arrangements or the lack of auxiliary aids put a disabled person at a substantial disadvantage compared to others. The Act places a requirement upon employers to make reasonable adjustments for a disabled employee; where there is a failure to make a reasonable adjustment the potential for discrimination arises.

The duty to make reasonable adjustments is unique to the protected characteristic of disability. Where the duty arises, employers must effectively treat the disabled person more favourably than others in an attempt to reduce or remove the substantial disadvantage the individual is faced with.

What is reasonable will depend on the circumstances and where the adjustment is not seen to be reasonable by the employer, they are entitled to refuse. In the recent decision of Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins 2013 the Employment Appeal Tribunal (EAT) looked at whether the employer had breached their duty to make reasonable adjustments by only offering a disabled employee reduced hours for a fixed period of time.

Mr Higgins, a long serving employee had been absent from work for a long period of time on the grounds of ill health and had provided his employer with a medical certificate which recommended a phased return over a period of up to 26 weeks. His employer offered him the opportunity to build up to his normal contractual hours over a 13 week period in accordance with their attendance management policy, which set out procedures for addressing short term and long term absence. Mr Higgins refused to return to work at all unless this period was extended. His employer refused and Mr Higgins was dismissed in consequence of his refusal.

Mr Higgins brought a claim for unfair dismissal and claimed that his employer had failed to make reasonable adjustments for him as a disabled employee by failing to consider the extension to his phased return to work. The Employment Tribunal Judge agreed that by failing to consider the extended return to work plan the employer had breached its duty to make reasonable adjustments.

On appeal, the EAT overturned the decision. It did not consider that it was always necessary for the employer to give an explicit guarantee to extend the period of phased return. The EAT ruled that it was actually the requirement for Mr Higgins to work his contractual hours which placed him at a disadvantage instead of just a general requirement to work and that the Tribunal had incorrectly identified the provision as placing Mr Higgins at a substantial disadvantage. The Tribunal had also failed to apply the “range of reasonable responses” test when looking at the fairness of the actual dismissal.

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About the Author
Michael Stokes, Partner
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