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

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

You may also be interested in these articles:

Sponsored Video

Register, Login or Login with your Social Media account:


Upcoming FE Events

Advertiser Skyscrapers

Newsroom Activity

Educating yourself in Prison: an inside job

Educating yourself in Prison: an inside job

FE News: The Future of Education News Channel had a status update on Twitter 2 days ago

RT @NCFE: ‘For as long as humans have worked, and whatever industry they may have worked in, success has always been predicated on having t…
View Original Tweet

Latest Education News

Further Education News

The FE News Channel gives you the latest education news and updates on emerging education strategies and the #FutureofEducation and the #FutureofWork.

Providing trustworthy and positive Further Education news and views since 2003, we are a digital news channel with a mixture of written word articles, podcasts and videos. Our specialisation is providing you with a mixture of the latest education news, our stance is always positive, sector building and sharing different perspectives and views from thought leaders, to provide you with a think tank of new ideas and solutions to bring the education sector together and come up with new innovative solutions and ideas.

FE News publish exclusive peer to peer thought leadership articles from our feature writers, as well as user generated content across our network of over 3000 Newsrooms, offering multiple sources of the latest education news across the Education and Employability sectors.

FE News also broadcast live events, podcasts with leading experts and thought leaders, webinars, video interviews and Further Education news bulletins so you receive the latest developments in Skills News and across the Apprenticeship, Further Education and Employability sectors.

Every week FE News has over 200 articles and new pieces of content per week. We are a news channel providing the latest Further Education News, giving insight from multiple sources on the latest education policy developments, latest strategies, through to our thought leaders who provide blue sky thinking strategy, best practice and innovation to help look into the future developments for education and the future of work.

In Jan 2021, FE News had over 173,000 unique visitors according to Google Analytics and over 200 new pieces of news content every week, from thought leadership articles, to the latest education news via written word, podcasts, video to press releases from across the sector, putting us in the top 2,000 websites in the UK.

We thought it would be helpful to explain how we tier our latest education news content and how you can get involved and understand how you can read the latest daily Further Education news and how we structure our FE Week of content:

Main Features

Our main features are exclusive and are thought leadership articles and blue sky thinking with experts writing peer to peer news articles about the future of education and the future of work. The focus is solution led thought leadership, sharing best practice, innovation and emerging strategy. These are often articles about the future of education and the future of work, they often then create future education news articles. We limit our main features to a maximum of 20 per week, as they are often about new concepts and new thought processes. Our main features are also exclusive articles responding to the latest education news, maybe an insight from an expert into a policy announcement or response to an education think tank report or a white paper.

FE Voices

FE Voices was originally set up as a section on FE News to give a voice back to the sector. As we now have over 3,000 newsrooms and contributors, FE Voices are usually thought leadership articles, they don’t necessarily have to be exclusive, but usually are, they are slightly shorter than Main Features. FE Voices can include more mixed media with the Further Education News articles, such as embedded podcasts and videos. Our sector response articles asking for different comments and opinions to education policy announcements or responding to a report of white paper are usually held in the FE Voices section. If we have a live podcast in an evening or a radio show such as SkillsWorldLive radio show, the next morning we place the FE podcast recording in the FE Voices section.

Sector News

In sector news we have a blend of content from Press Releases, education resources, reports, education research, white papers from a range of contributors. We have a lot of positive education news articles from colleges, awarding organisations and Apprenticeship Training Providers, press releases from DfE to Think Tanks giving the overview of a report, through to helpful resources to help you with delivering education strategies to your learners and students.


We have a range of education podcasts on FE News, from hour long full production FE podcasts such as SkillsWorldLive in conjunction with the Federation of Awarding Bodies, to weekly podcasts from experts and thought leaders, providing advice and guidance to leaders. FE News also record podcasts at conferences and events, giving you one on one podcasts with education and skills experts on the latest strategies and developments.

We have over 150 education podcasts on FE News, ranging from EdTech podcasts with experts discussing Education 4.0 and how technology is complimenting and transforming education, to podcasts with experts discussing education research, the future of work, how to develop skills systems for jobs of the future to interviews with the Apprenticeship and Skills Minister.

We record our own exclusive FE News podcasts, work in conjunction with sector partners such as FAB to create weekly podcasts and daily education podcasts, through to working with sector leaders creating exclusive education news podcasts.

Education Video Interviews

FE News have over 700 FE Video interviews and have been recording education video interviews with experts for over 12 years. These are usually vox pop video interviews with experts across education and work, discussing blue sky thinking ideas and views about the future of education and work.


FE News has a free events calendar to check out the latest conferences, webinars and events to keep up to date with the latest education news and strategies.

FE Newsrooms

The FE Newsroom is home to your content if you are a FE News contributor. It also help the audience develop relationship with either you as an individual or your organisation as they can click through and ‘box set’ consume all of your previous thought leadership articles, latest education news press releases, videos and education podcasts.

Do you want to contribute, share your ideas or vision or share a press release?

If you want to write a thought leadership article, share your ideas and vision for the future of education or the future of work, write a press release sharing the latest education news or contribute to a podcast, first of all you need to set up a FE Newsroom login (which is free): once the team have approved your newsroom (all content, newsrooms are all approved by a member of the FE News team- no robots are used in this process!), you can then start adding content (again all articles, videos and podcasts are all approved by the FE News editorial team before they go live on FE News). As all newsrooms and content are approved by the FE News team, there will be a slight delay on the team being able to review and approve content.

 RSS IconRSS Feed Selection Page