Employers not always liable for adjustments in absence cases

An Employment Appeals Tribunal has upheld an Employment Tribunal decision that the Department for Work and Pensions (DWP) did not have a duty to make reasonable adjustments while an employee was unfit to return to work.

Doran v DWP is a useful reminder that an employer’s duty to make reasonable adjustments in respect of an employee on sick leave is only triggered when an employee indicates that they might be fit to return to work.

In the case in question, Doran worked for the DWP before going on sick leave due to stress in January 2010 when she submitted a sick note from her doctor.

The following month, Doran submitted a further sick note stating that she was unfit for work, which made no suggestion of a possible return if adjustments were made.

In February 2010, Doran met with her line manager to discuss her absence, who explained that she could be offered administrative assistance duties and part-time hours for four weeks to support a phased return to work, but with a reduced salary.

Doran said that she would go away and speak to her doctor about it, however, she never came back to her employer with an answer. Accordingly, in May 2010, and in accordance with their attendance policy, the DWP terminated Doran’s employment, stating that it could no longer support her absence.

She brought various tribunal claims, including one that the DWP had failed to make reasonable adjustments under the Disability Discrimination Act 1995 (now the Equality Act 2010).

She argued that a four-week phased return was not reasonable and she did not think that it was reasonable for the DWP to demote her and reduce her salary.

The ET rejected her claim, stating that in its view, the DWP’s duty to make reasonable adjustments had not been triggered because Doran had not informed the DWP of a return date, or given any other sign that she would be returning to work at a particular time. Doran appealed the decision.

But the EAT upheld the decision, finding the ET had been entitled to rule that the duty to make reasonable adjustments was not engaged because Doran was not fit to work even if adjustments were made.

In addition, it decided that it was for the employee, in this case Miss Doran, to raise the issues of a lower-grade role with the DWP at the relevant time.

Sonia Mangat, a solicitor at law firm Lodders Solicitors, said: “This case illustrates that, generally, for an employer’s duty to make adjustments, there must be an indication that the employee might be fit to return to work at some point.

“It also highlights the important warning to all employees that they must stay proactive and communicative with their employer to ensure they do not prejudice their own position in the long term.

“For the employee, they must not simply rely on a doctor’s note to defend their position and reasons for taking time off work, but should commit to suggesting ideas to their employer about ways which would assist their return to work.

“In long-term sickness cases, where the employer and employee maintain contact and work together, a positive outcome is often maximised.”