Mark Leach on reasonable adjustments – ‘that old chestnut with a twist’

When the EAT recently ruled against Fareham College for failing to make reasonable adjustments when dismissing an ill or disabled person, it echoed the courts’ attitude on treating employees fairly.

Ms Walters, a lecturer, had been off sick for a considerable length of time although she had always expressed an interest in returning to work. When medical evidence confirmed that she would not be fit enough to return to her teaching duties, the College recruited a replacement and then dismissed Ms Walters, arguing that any other employee with the same sickness record would have been treated in the same way.

However, the EAT granted the discrimination claims on the basis that Ms Walters should have been allowed a phased return to work in another position. It was this failure to make a reasonable adjustment that was discriminatory.

Section 3⁽¹⁾ of the Disability Discrimination Act 1995 (‘DDA’) makes an employer’s act of discrimination unlawful where it is based on disability, unless that act can be justified by the employer. Section 3⁽²⁾ requires an employer to make reasonable adjustments for a disabled person where they are placed at a disadvantage because of their disability. Both of these provisions are highly relevant to absence related dismissals, where the absence is related to the disability of the employee in question.

Prior to last year’s important decision in Malcolm v. LB Lewisham, such absence related dismissals were always considered discriminatory and it was for the employer to justify the decision to dismiss. The Lewisham decision changed all this. The rationale behind this decision meant that a comparator for these purposes (comparators are needed to help determine whether an employer has discriminated) should be an employee who has been on long term sick leave for the same period of time but who does not have a disability. Using this comparator would mean that most employers would be able to show that their decision to dismiss an employee who had been absent for a long time was not discriminatory on grounds of their disability; they would have made the same decision whether or not the employee had a disability.

Ms Walters argued that her dismissal should not have occurred because her employers should have made certain reasonable adjustments. Her argument (accepted by the employment tribunal) was that the College should have facilitated a phased return to work; failure to do this and failure to allow a further period of absence until she was ready to undertake the phased return to work amounted to a failure of the College to make these reasonable adjustments.

Ms Walters also succeeded in her claim of disability discrimination under section 3⁽¹⁾. Her case was heard by the employment tribunal before the Lewisham case had been decided. However, because the dismissal was so closely linked to the failure to make reasonable adjustments, the EAT (whose review of the case occurred after Lewisham) decided that the dismissal itself was also discriminatory under section 3⁽¹⁾. In short, the dismissal would not have happened if the reasonable adjustments had been made.

Employers have been prepared to deal with long term absence dismissals a little more boldly following the Lewisham decision, but the Walters case still emphasises the need to consider possible reasonable adjustments. It is clear from the Walters decision that a potential reasonable adjustment could be to allow a longer period of absence as an alternative to dismissal, particularly where a phased return to work is contemplated.

So, what 5 lessons can be learned from this latest case?

1. Always consider reasonable adjustments prior to dismissal.
2. What would be unreasonable about allowing the employee longer to recover? There may be plenty of reasons for deciding that it is not reasonable to allow a longer period but an employer in this situation should be clear about what they are. Obvious examples would be, in the case of a college, maintaining an ability to properly cover courses in respect of which the college has a commitment; or unfair burdens being placed on colleagues.
3. Be open with the employee. Fareham College did not fare well from its decision to recruit another employee to cover the duties of the claimant. These actions may well have not been linked to the decision to dismiss Ms Walters but the recruitment process adopted by the college did not look good. Had the college explained to Ms Walters in advance that it would need to recruit a temporary replacement for her and also explained the intended terms of that temporary replacement, then Ms Walters may have been less inclined to take her case to a Tribunal.
4. Consider possible alternative positions that the employee may be prepared to agree to which either (1) may assist the employee returning to work early or (2) may be more easily filled on a temporary basis or (3) may be more easy to keep vacant than the employee’s original position.
5. Try to reach an agreement with the employee on the actions to take – whether that is to allow a longer period of time off at nil pay, to move somewhere else or to terminate employment. If the employee does not agree that termination is appropriate then why and what alternatives are proposed?

Mark Leach is a partner at Weightmans LLP’s employment team