Unfit to return to work

Miss Doran worked for the DWP and went on sick leave from 10 January 2010 owing to stress. She submitted a medical certificate and asked if part-time hours could be considered going forward. At the outset of February 2010, Miss Doran provided a further medical certificate stating that she was unfit for work, which made no suggestion of a possible return if adjustments were made.

In mid-February, Miss Doran met with her manager to discuss matters. Miss Doran stated that her doctor had advised her not to be "bullied" into returning to work before she was ready. In response, the manager stated that Miss Doran could be offered administrative assistance duties and part-time hours for four weeks to support her return to work. Miss Doran said that she would speak to her doctor about it, but did not discuss the issue with the DWP again. On 26 May 2010, the DWP gave Miss Doran notice of dismissal, explaining that it could no longer support her absence. Under the DWP's attendance policy, it was rare that absences would be supported if there was no indication of a return to work within six months.

Miss Doran brought various tribunal claims, including one that the DWP had failed to make reasonable adjustments. In her view, the offer of a four-week phased return was not reasonable, considering that she had been unwell since January 2010. Further, she did not think that it was reasonable for the DWP to demote her and thus reduce her salary.

The Employment Tribunal held that the DWP's attendance policy placed Miss Doran, a disabled person, at a substantial disadvantage in comparison with non-disabled persons. It resulted in her dismissal following an inability to achieve satisfactory attendance levels and return to work within what the DWP considered a reasonable period of time. Notwithstanding this finding, the Tribunal rejected her claim, ruling that the DWP's duty to make reasonable adjustments had not been triggered because Miss Doran had not informed it of a return date or given any other sign that she would be returning to work at a particular time.

Crucially, the tribunal noted that a phased return to work suggested by occupational health could not be implemented until Miss Doran indicated she was going to return to work.

It was the Tribunal’s view, that she would not have become fit for work within six months, after which the DWP would normally consider dismissal. There was no known reason to extend this time-frame for Miss Doran. Miss Doran appealed to the EAT.Top

The Employment Appeals Tribunal rejected Miss Doran's appeal finding that the Tribunal had been entitled to find that the duty to make reasonable adjustments was not triggered because Miss Doran had not become fit to work even if adjustments were made. Further, the EAT decided that the Tribunal had been entitled to find that the ball had been in Miss Doran's court to raise the issues of a lower grade role with a phased return when she became fit to do some work.Top

This case demonstrates 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.

For more information or guidance, contact us on 0115 9888 777. 


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