As we have often mentioned, employers have a duty to make ‘reasonable adjustments’ to assist disabled employees. There are, however, limits to this obligation. In a recent case, the Employment Appeal Tribunal has held that it was not a reasonable adjustment for an employer to have to offer an employee who was on long term sick leave a career break.
Neither was it a reasonable adjustment to require the employer to propose rehabilitative non-productive work.
Let’s look at the facts. In Salford NHS Primary Care Trust v Smith, Mrs Smith was an Occupational Therapist who developed Chronic Fatigue Syndrome. After a period of long term sickness absence Mrs Smith eventually accepted that she did not wish to return to her former client-facing role, and neither did she wish to go back to her former workplace in any capacity, because it was a busy and stressful environment. Other posts elsewhere were considered, but rejected for a variety of reasons. Mrs Smith declined offers of administrative work because she had no IT skills. The Trust's offer of IT training went unheeded. The Occupational Health adviser suggested a phased return to work on ‘light duties’ or a career break.
In June 2008, after Mrs Smith had failed to attend two scheduled meetings, the Trust wrote her a detailed letter setting out the attempts that had been made to find her a role and the reasons why a number of available posts had been unsuitable. IT training was again offered. She was invited to a further meeting and it was made clear that if she did not attend the Trust might have to "consider employment options including termination". This latter point had also been mentioned in earlier letters. On receipt of this letter, Mrs Smith replied in writing to tender her resignation, saying that she had lost all confidence in the process and doubted the Trust's willingness to accept medical advice or facilitate her return to work.
Mrs Smith brought a tribunal claim, maintaining that the Trust had failed to make reasonable adjustments to facilitate an eventual return to work, and that she had been constructively dismissed. The case reached the Employment Appeal Tribunal where it was held that a career break was not a reasonable adjustment. An adjustment is only reasonable if it would alleviate the disadvantage caused to the worker – a career break would not help Mrs Smith to get back to work. The appeal judge stated that ‘reasonable adjustments are primarily concerned with enabling the disabled person to remain in or return to work with the employer." A career break did neither.
Occupational health had also suggested that ‘rehabilitative’ work on a phased return would be a reasonable adjustment. Not so, said the EAT. It is not reasonable to impose a duty on an employer to give someone non-productive work to ‘rehabilitate’ them.
Mrs Smith also failed in her constructive dismissal claim. She had ‘jumped’ too early by resigning while efforts to identify reasonable adjustments were ongoing.
Practical Tip: This case is a reminder of the limitations of the reasonable adjustments duty. Reasonable adjustments are primarily concerned with enabling the individual to remain in work or (where they are on sick leave) return to work. It is not an open-ended obligation to agree to anything the employee (or their adviser) suggests.