3. The law and work-related stress

This chapter summarises the legal duties owed by the employer to manage and where possible eliminate work-related stress.

There are no separate regulations in the UK aimed at controlling stress at work. However, employers have legal duties under both statutory and common law that are relevant to tackling the problem.

Statutory duties are those contained in Acts of Parliament, such as the Health and Safety at Work etc Act 1974 (HSWA), and the regulations made under it, as well as the equality laws, in particular laws prohibiting disability discrimination, now found in the Equality Act 2010. The Working Time Regulations 1998 (WTR) also play an important role.

The law of constructive unfair dismissal is also relevant. An employee whose employer fundamentally breaks (or “repudiates”) the contract of employment is entitled to resign and claim unfair dismissal in the Employment Tribunal, although a claim for constructive dismissal should only ever be considered as a last resort.

This chapter also looks briefly at the law governing unfair dismissal, exploring the circumstances in which a dismissal of an employee who is on long-term sickness absence due to work-related stress is likely to be judged unfair. Further and more detailed information can be found in LRD’s recent booklet Sickness absence and sick pay.

In contrast to the laws governing unfair dismissal and discrimination, common law duties are based on principles that have been developed through decisions of the civil courts. The basis for these decisions is the common law of negligence. The law provides a remedy where the employer’s breach of the duty of care owed to employees results in personal (psychiatric) injury.

A few workers have successfully used this framework to claim compensation for psychiatric injury resulting from stress at work, and this chapter looks at the most important of these decisions and tries to draw out some practical pointers from the findings in each case. It must be emphasised that success in these kinds of cases is rare. Civil law cases tend to be brought by individuals who have suffered serious psychiatric harm, where work-related stress has had a devastating impact on their long-term capacity to continue in their careers and to enjoy their lives.

The Health and Safety at Work Act

The Health and Safety at Work Act 1974 (HSWA) sets the basic framework for health and safety law in the UK. It also established the Health and Safety Executive (HSE).

Employers have a general duty of care under section 2 of the Act to ensure the health, safety and welfare at work of all their employees and this has been interpreted as including employees’ mental health.

Enforcement

In 2003, West Dorset General Hospitals NHS Trust became the first employer of its kind to receive a work-related stress enforcement notice from the HSE. In 2007, University Hospital of North Staffordshire NHS Trust was issued with multiple improvement notices following a work-related stress review, and in 2009, Liverpool Hope University was similarly served with an improvement notice for failure to manage worker stress levels. Summary details of enforcement notices, along with compliance dates, are searchable at: http://www.hse.gov.uk/notices/search/simple/default.asp.

Many safety reps have told LRD how the threat to contact the HSE or their local authority to ask for enforcement measures to be taken against their employer is an effective means of ensuring that action is taken on workplace stress where more collaborative attempts to engage management have failed.

UNISON South Western Ambulance Branch has been campaigning on stress in the workplace. In 2008 this resulted in two visits from safety inspectors with promises of further visits. Reps were concerned about delays of more than 12 months in agreeing to a pilot HSE stress survey.

One rep told LRD: “The employer is trying to impose a more draconian sickness policy and have not yet completed the basic risk assessments to cover such areas as stress. They do not seem to want to call it stress and in fact their policy is called “staff well-being” instead of stress.”

He added: “In the NHS and certainly in the ambulance sector, the members I represent are under increasing performance pressures which are taking effect on them.”

At Leeds Metropolitan University, UCU and UNISON members and other workers complained to HSE about unacceptable levels of work-related stress and bullying behaviour in 2007. Inspectors interviewed 40 workers and found a number of serious concerns, including the “inconsistent application” of its stress policy, a lack of senior management commitment, concerns with risk assessment and with training. Inspectors wrote to management insisting on changes.

There has, however, been a steep and troubling decline in HSE enforcement activity in recent years, and in March 2011, in line with the government’s “Good Health and Safety: Good for Everyone” strategy, the HSE announced its intention to abandon proactive inspections in a number of sectors where stress is well-recognised, such as the education, health and social care sectors.

The absence of proactive HSE inspection activity in these sectors makes an effective union voice through worker safety representation more vital than ever.

The TUC’s biennial survey of safety reps found nearly one in 10 reps (9%) reporting that the last inspection at their workplace was more than three years ago, while a further 15% said it was between one and three years ago. Only around a quarter (27%) say their workplace has received a visit within the last 12 months.

Preventing harm — The Management of Health and Safety at Work Regulations

Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (MHSWR) requires employers to make a “suitable and sufficient” assessment of health and safety risks, in order to identify the preventative and protective measures necessary to reduce those risks. Risk assessments must be kept under review.

When identifying potential sources of stress, it is important to remember that there is plenty of evidence to demonstrate that stress is not confined to high pressure jobs, or jobs involving a lot of face-to-face interaction with members of the public. Stress is also a serious problem where roles and work processes are boring and repetitive. The MHSWR recognise this, by requiring employers to implement preventative measures based on principles that include adapting work to the individual, especially regarding workplace design, choice of work equipment and working and production methods, aiming at alleviating monotonous and repetitive work.

The Regulations emphasize the importance of developing a coherent overall prevention policy covering technology, work organisation, working conditions, social relationships, and the working environment. Reps are often best placed to make suggestions for changes to work organisation that can be small and low-cost, but that can make a big difference to individual stress levels. Operating at workplace level and able to develop strong, trusting relationships with colleagues, reps are especially well-placed to help combat sensitive psycho-social workplace issues such as stress, where employees are likely to be reluctant to be open in expressing concerns.

One particular problem that has emerged during this recession has been increased reluctance by workers to be honest about the extent of the stress that they are suffering, because of fear of becoming a target for redundancy. A survey conducted by mental health charity Mind in 2010 found that of the one in five respondents who admitted having called in sick because of stress, 93% gave their employer an alternative explanation for their absence. Working collaboratively, safety reps’ unique position of trust should help to gauge the true scale of the problem of stress at an organisational level in their workplace, as a first step to tackling it.

Management Standards for Work-related Stress

Unions campaigned hard for an Approved Code of Practice (ACOP) on stress, but this was rejected by the HSE. Instead, the HSE published its Management Standards for Work-related Stress. The standards are voluntary guidance and are not legally binding. The six standards: demands, control, support, relationships, role and change, are looked at in more detail in Chapter 3: Government guidance.

Although the Standards are voluntary, they are nevertheless a useful tool for reps who are attempting to combat stress at both an individual and an organisational level. As well as providing helpful proactive tools for a stress management framework, the Standards can be used reactively, to help negotiate on behalf of workers who have suffered psychiatric injury as a result of workplace stress, because they set a series of authoritative benchmarks that can be used to hold management to account in individual cases.

Safety Representatives and Safety Committees Regulations

The Safety Representatives and Safety Committees Regulations 1977 give safety representatives extensive legal rights to investigate and tackle workplace stress. They have the right to:

• investigate potential hazards;

• inspect the workplace and talk to members in confidence;

• take up members’ health and safety complaints;

• be consulted by the employer about health and safety matters;

• obtain health and safety information from the employer;

• inspect health and safety documents held by the employer; and

• take time off to carry out their functions.

Safety reps can gather information from management, for example, on sickness and incidents, which may be useful in identifying patterns of stress. They can conduct membership surveys to build up awareness of stress at work and reveal the extent of the problem, and they can talk individually to members. And inspections can be organised to identify the causes of stress.

The Working Time Regulations

There is plenty of evidence linking long working hours and shift work to stress. The Working Time Regulations 1998 (WTR) cover these areas. Most workers are entitled to:

• a maximum working week of not more than 48 hours, including overtime, when averaged out over a 17-week period, unless an opt-out agreement has been signed;

• a maximum of eight hours’ night work;

• a minimum daily rest period of 11 hours;

• a minimum of a day off per week, or two days per fortnight;

• a rest break of at least 20 minutes if the working day is more than six hours; and

• paid annual leave of at least 5.6 weeks.

As well as the specific obligation to provide a result break of 20 minutes referred to above, an employer is required to ensure workers are given adequate rest breaks where the work pattern puts workers’ health and safety at risk because the work is monotonous, or the work-rate is predetermined.

The wording (Regulation 8) has not yet been tested in court and appears to be in addition to the basic 20 minute rest break entitlement.

A model letter “opting back in” to the 48-hour week, prepared by the TUC is reproduced below. Detailed information on the WTR can be found in LRD’s publication Law at work.

The requirements of the WTR are more stringent in relation to young workers (aged 15-18). Details can be found in LRD’s annual Health and safety law booklet.

Although an Employment Tribunal has no power to award compensation to workers forced to work excessive hours in breach of the WTR, an employee complaining of constructive dismissal can rely on being required to work excessive hours as a breach of the employment contract.

In practice, employees often find it difficult to prove that excessive hours have in fact been worked. Employees struggling with their hours should be encouraged to:

• speak up, directly and via their rep, and record all their requests for support in writing, for example using email; and

• keep a careful record of their hours.

In Sayers v Cambridgeshire County Council [2006] EWHC 2029, the High Court rejected a stress claim based on a breach of the WTR. The claimant proved that she was working 55 hours a week and had never signed an opt-out agreement. However, the court decided that no civil remedy was intended by Parliament when it drew up the Regulations.

However, in Hone v Six Continents Retail Limited [2006] IRLR 49, the Court of Appeal confirmed that even though there is no free-standing civil remedy for breach of the WTR, the fact that a worker was working more than the 48-hour maximum working week was relevant evidence in his claim for psychiatric injury resulting from work-related stress.

Disability discrimination and stress

Since 1 October 2010, the law prohibiting unlawful discrimination against the disabled (previously found in the Disability Discrimination Act (DDA) 1995) is contained in the Equality Act 2010 (EA 2010). EA 2010 is largely a “consolidating” Act. In other words, it collects together the existing laws on discrimination into one single piece of legislation. However, in relation to disability, and specifically mental health disability, the Act also introduces some helpful changes.

Under the EA 2010, a person has a disability where a physical or mental impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day to day activities. However, for a person to be disabled under the DDA 1995, the impairment needed to impact on one of a list of specified “day-to-day activities”. Specifically, to succeed in a claim based on a mental health disability, a claimant needed to show that the condition had an effect on his or her “memory or ability to concentrate, learn or understand”. The EA 2010 abolished this list, which should make it easier for workers with mental health problems such as depression to be able to demonstrate that they are disabled for the purposes of equality laws.

However, it is important to remember that tribunals always require persuasive medical evidence of disability, including mental health disability. GP letters or fit-notes indicating that a worker is suffering from “work-related stress” are very unlikely to be regarded as adequate for this purpose. “Stress” itself is not regarded by the tribunal as a mental health condition for the purposes of disability discrimination legislation.

In the recent case of J v DLA Piper (UKEAT/0263/09), the claimant’s offer of a job as a professional support lawyer for a large law firm was withdrawn after she revealed a history of depression. She brought a claim for disability discrimination, but the EAT concluded that her condition did not amount to a disability for these purposes. In reaching its conclusion, the EAT offered some guidance as to when a mental health condition is likely to be regarded as a disability under equality laws.

The tribunal indicated that while “clinical depression” will almost always be regarded as a disability, “reactive depression”, in the form of the “anxiety, stress and low mood” a person suffers as a reaction to adverse circumstances such as problems at work is less likely to qualify as a disability, although each case will continue to be examined on its own individual facts, in particular the severity of the condition.

In practice, the requirement for a condition to be “long-term” will often limit the scope for adverse reactions to life events to amount to disability. An impairment has a “long-term” affect if it lasts for at least 12 months, or for the rest of the individual’s life. Recurring conditions may amount to a disability even if they appear to have gone away, provided they are likely to recur.

In the DLA Piper case, the tribunal helpfully confirmed that a patient’s GP is fully qualified to express an opinion as to whether or not that patient is suffering from depression. There is no requirement for a claimant to obtain specialist expert evidence of a mental health condition.

In practice, however, great care should be taken to make sure that the expert medical evidence, whether from a GP or specialist, is sufficiently clear and persuasive to provide the necessary guidance to the tribunal. This is one area where claimants frequently find themselves in difficulty.

Pre-employment health checks

A further change introduced by the EA 2010 which will strengthen the position of disabled workers with a record of mental health sickness absence is the ban on pre-employment questions to job applicants about their health, including whether they have a disability, and about their previous sickness absence record, before they are offered a job.

Once the offer has been made, a reference request asking about a candidate’s sickness absence record is, in theory, possible, although employers are likely to be discouraged from asking for references in even this limited way, given the increased litigation risk.

Past sickness absence is not a reliable indicator of future performance and in any event, past absence may be due to a previous employer’s failure to make reasonable adjustments, or due to poor working conditions or bad line management, leading to stress-related absence. There are exceptions to the ban. More details can be found in the LRD booklet Sickness absence and sick pay.

Note that this prohibition can only be enforced by the Equality and Human Rights Commission. Nevertheless, it remains a valuable tool for workers, because if an employer is shown to have asked a prohibited question, the burden of proof in a claim for direct discrimination will then shift to the employer. The fact that an employer has asked these sorts of questions is powerful ammunition, in itself, in any discrimination claim.

Rehabilitation following stress-related sickness absence — the “Fit Note”

The Statement of Fitness for Work or “Fit Note” was introduced in April 2010. Properly administered, and with the support of effective occupational health provision (either internal or external), the Fit Note should help to encourage a more proactive, collaborative approach to the rehabilitation of employees back to the workplace following a stress-related absence.

The Fit Note allows the GP, in collaboration with the patient, to suggest a return to work based on one of four possible options:

• a phased return to work;

• altered hours;

• amended duties; and

• workplace adaptations.

The case law summarised below demonstrates how, in the overwhelming majority of cases of serious psychiatric harm resulting from workplace stress, there are usually plenty of warning signs and opportunities to intervene before the employee reaches breaking point.

Frequently, the victim is a vulnerable worker who returns to work following a period of ill-health absence and is then not properly supported over the long-term to help reintegrate properly back into the workplace.

All too often, work has mounted up during the absence, promised help is not provided, colleagues are unsupportive, especially if their workload has increased as a result of the absence and the reasons for the absence were not adequately explained, mentoring or support programmes are short-term or simply tail off, leaving the employee feeling isolated and struggling to cope.

Once an employee is back at work, the rep can play a key role making sure that management provides the necessary on-going support and mentoring, and an appropriate workload and responsibilities moving forward into the longer-term.

Stress-related sickness absence — disability

Section 15 of the EA 2010 introduces a new concept, namely: “discrimination because of something arising in consequence of” a person’s disability. Under this provision, an employer will discriminate against a disabled person if it treats that person unfavourably (for example, ending the employment following a stress-related absence) because of something “arising in consequence of” the employee’s disability, unless the employer can objectively justify the treatment. The employer has a defence if s/he can show that s/he did not know and could not reasonably have been expected to know, that the employee had the disability.

There are a few practical points for reps to note about this new right in the context of work-related stress, in particular, stress-related absence:

• The employer has a defence if it can show that it did not know (and could not reasonably have guessed) the employee was disabled. A cautious employer will be very wary of dismissing an employee with a long-term mental health condition, especially if there is any suggestion that it has been caused or exacerbated by work. Reps should therefore talk to workers about the benefits of being as open as practically possible with their employer about their condition, including sharing medical evidence with the employer where possible. Practical arrangements should be agreed and put in place to make sure sensitive personal information about the employee is handled appropriately. For example, the employee could agree that a rehabilitation team made up of the safety rep, an occupational health adviser, if available, an HR adviser and his or her line manager, can have access to medical information about his or her condition, to enable a rehabilitation plan to be put together, discussed and implemented.

• The employer has a defence if it can show that the decision to dismiss was objectively justified. In practice, an employer will not be able to objectively justify a decision to dismiss until it has met its statutory duty to make all reasonable adjustments to accommodate the condition. Although an employee on long-term sickness absence because of work-related stress is not obliged to suggest adjustments, it is a good idea to engage proactively with the employer to help develop a collaborative return to work plan and to suggest sensible adjustments, with the support of the rep.

Stress-related sickness absence and unfair dismissal

As indicated above, just because an employee’s sickness absence is caused by the employer’s fault, for example poor working conditions leading to work-related stress, this does not mean that the employee cannot eventually be dismissed as a result of sickness absence, as long as the employer has done all it can practically do to help him or her back to work. The case of McAdie v Royal Bank of Scotland [2007] EWCA Civ 806 is an important decision on long-term sickness absence in the context of mental health problems:

An employer whose behaviour caused or contributed to an employee’s illness will be expected to “go the extra mile” in looking at all the available alternatives before dismissing. However, eventually a point will be reached at which there is no alternative to dismissal.

Obligation to consider ill-health retirement as an alternative to dismissal

Some employers offer ill-health retirement to employees who become too ill to work. In First West Yorkshire Limited v Haigh (UKEAT/0246/07), the EAT held that where an employee is absent on long-term sickness absence and a pension scheme provides access to an enhanced benefit, the employer has an implied obligation to consider ill-health retirement, as an alternative to a capability (ill-health) dismissal. Failure to do this in Mr Haigh’s case was a breach of contract and made the dismissal unfair.

Constructive dismissal

An employee whose employer fundamentally breaks (or “repudiates”) the contract of employment is entitled to resign and claim unfair dismissal. However, a claim for constructive dismissal should only ever be considered as a last resort. The case of GAB Robbins v Triggs ([2008] EWCA Civ 17) shows how complex and high risk such a course of action can be.

Note, importantly, that if the employer’s behaviour leading up to the dismissal had amounted to discrimination, Mrs Triggs would have been able to bring a claim for unlawful discrimination in the Employment Tribunal. In contrast to claims for unfair dismissal, discrimination claims can include compensation for injury to feelings and personal (including psychiatric) injury resulting from the acts of discrimination. Again in contrast to unfair dismissal claims, there is no limit to the amount of compensation that can be awarded in a claim based on unlawful discrimination.

However, unlawful acts of discrimination at work will often be only one of many stressors in an individual’s life, contributing to their mental health difficulties, and employers faced with a claim for compensation based on work-related stress are often keen to show that other factors, unrelated to work, such as pre-existing mental health problems, relationship breakdown and so on are the main cause of the employee’s problems.

This can be one of the most difficult and unpleasant aspects of this kind of claim. This was the situation in Thaine v London School of Economics [2010] UKEAT 0144 where the EAT reduced the claimant’s compensation down to 40% of its original amount, to reflect the fact that other factors, such as a deteriorating relationship with her boyfriend and pre-existing mental health problems such as obsessive compulsive disorder contributed to Ms Thaine’s poor psychiatric health, alongside the employer’s unlawful discrimination.

Landmark cases in the civil courts for personal (psychiatric) injury

A series of high profile cases in recent years have helped focus employer attention on the issue of workplace stress. These are civil court cases based on allegations of personal (psychiatric) injury. Whereas employment tribunal claims must be brought within a short three month time frame, individuals have three years from the date of the injury in which to bring a civil (personal injury) claim. These cases are exceptionally difficult and expensive to bring, as well as being stressful and protracted, often lasting several years. The risks involved are greater than those involved in bringing a claim in the Employment Tribunal, especially because the loser is usually required to pay the winner’s legal costs, as well as their own.

Unions fear that these cases are likely to become even more prohibitive for the overwhelming majority of claimants as a result of planned changes to legal funding announced following a review conducted at the request of the government by Lord Justice Jackson. (Government Response: Reforming Civil Litigation Funding and Costs in England and Wales: Ministry of Justice March 2011).

In summary, these cases demonstrate that a worker wishing to bring this sort of claim must produce persuasive expert medical evidence:

• that he/she has suffered psychiatric injury — stress on its own is not enough;

• that the psychiatric injury was caused by work-related factors such as, for example, bullying, poor and unsupportive line management, excessive workload, long hours, poor work systems and processes and so on;

• that psychiatric injury to this particular employee was reasonably foreseeable, for example, because the employer has been warned of the risk of psychiatric injury, either directly by the employee or a GP or rep, or because the employee has a past history of mental health problems which is known to the employer. It is not enough to tell the employer that the employee is suffering from stress. Instead, it should be clear to a reasonable employer, looking at the surrounding circumstances, that the worker is likely to suffer from psychiatric injury if action is not taken; and

• that there was something that the employer, acting reasonably, could have done to avoid the injury.

Those cases that have succeeded in recent years have usually involved an already vulnerable employee returning to work after an absence linked to mental health problems at work such as stress, and not being given the on-going support and rehabilitative care required to reintegrate him or her effectively back into the workplace on a long-term basis.

It is the employer’s knowledge of the employee’s pre-existing vulnerability that makes any subsequent breakdown reasonably foreseeable, fixing the employer with liability for the employee’s loss.

In Walker v Northumberland County Council [1995] IRLR35, John Walker, a member of UNISON public services union, was a social worker who had two nervous breakdowns and was retired on medical grounds as a result of increasing workloads. He had repeatedly sought extra staff and administrative back-up but his requests were refused. His employers were found guilty in the High Court of breaking their common law duty of care to him.

More recently, the key cases have been Sutherland v Hatton [2002] IRLR 263 CA and Barber v Somerset County Council [2004] IRLR 475 HL.

To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.

Both of these cases demonstrate that, in principle, an employer’s liability for psychiatric injury is no different from the liability for physical injury. There are no “inherently stressful” occupations and instead, each set of circumstances will be assessed based on its own facts. In Sutherland v Hatton, the Court of Appeal issued some useful guidance on the factors likely to give rise to liability. The complete judgment, including the guidance, can be found on the BAILII website at: www.bailii.org.

The position in Barber was restated in another leading case: Hartmann v South Essex Mental Health and Community Care NHS Trust [2005] IRLR 293.

Providing a counselling service

Providing a counselling service will not of itself excuse an employer from liability for injury caused by workplace stress (Intel Corporation (UK) Limited [2007] IRLR 355 HL). This was reiterated in Dickins v O2 plc [2008] EWCA Civ 1144. Many large employers, as well as some unions, do offer valuable confidential counselling services for stress.

Practical pointers to be learnt from these cases

• Wherever practical, employees should be encouraged to share with the employer, if appropriate via his or her rep, the nature of mental health problems, including the risk of psychiatric injury and practical suggestions as to relevant stressors and how they can best be avoided.

• Employees should be encouraged to be well-organised in collating evidence to back up any grievance, including keeping clear records, using email to record dates and times, and keeping a journal logging incidents.

• Employees should remember the risk that if, after consultation, investigation and a thorough review of medical evidence, there genuinely is no other way of reducing the risk of psychiatric injury to a particular employee, an employer may be justified in demoting that employee or requiring him/her to agree to a change of duties (which could be temporary or permanent), or even dismissal, in order to avoid that risk. Only in the most serious of cases might this be justified as a last resort.

In practice, employees fear stigma and the risk of losing their job if they are open about the risk of psychiatric injury — especially at a time of economic uncertainty when redundancies are being made. Recent survey evidence (referred to in Chapter 2) shows how fearful employees are increasingly choosing to hide their stress, pretending that sickness absence is down to other factors. Elsewhere in this booklet, we have focused on the importance of encouraging employers to view stress as an organisational problem, to be remedied by addressing work processes and working conditions, as opposed to an individual issue, around individual behaviours and personalities.

Other significant recent judgments relating to mental health

In Corr v IBC Vehicles Limited [2006] EWCA Civ 331, Thomas Corr suffered an accident at work for which his employer accepted responsibility. Following several operations, he suffered post-traumatic stress disorder, lapsed into deep depression and showed suicidal tendencies. He committed suicide six years after the accident.

Eileen Corr, his widow, brought a claim under the Fatal Accident Act 1976, but the High Court dismissed it on the grounds that the suicide was not reasonably foreseeable. However, the Court of Appeal found in her favour. The evidence showed that suicide is “a not uncommon consequence of severe depression.” The judgment criticised the employer for failing to apologise to Mr Corr, even though expert advice was that this would have helped him deal with his depression.

In N & R v Secretary of State for Health [2009] EWCA Civ 79, the Court of Appeal, (reviewing the ban on smoking at Rampton psychiatric hospital) concluded that people with mental illnesses are protected from discrimination by the European Convention on Human Rights. Article 14 states that: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any such ground as sex, race, colour, language, political or other opinions, national or social origin, association with a national minority, property, birth or other status.” The EHRC argued that mental illness was a disability and constitutes “other status”. The Court ruled that “other status” included discrimination on the basis of a personal characteristic including mental illness or other mental disability.

In Talbot v WAGN Railways (UKEAT/0770/04/DA), Mr Talbot was a train driver with WAGN Railways. He suffered post-traumatic stress disorder after a member of the public committed suicide by jumping under the train he was driving. He was given a job on the ticket barrier, but after an argument with a member of the public, the occupational health physician stated that he should have a role with limited contact with the public. He was given a satisfactory role in the customer relations department, but soon after he lost his job during a restructuring. After time off sick he was dismissed.

The Employment Appeal Tribunal (EAT) found that failure to retain Mr Talbot in the customer relations department was a breach of the duty to make reasonable adjustments. The employer should have transferred him into a role in that department and considered adjustments to enable him to take up that role long-term.

In Hall v Department for Work and Pensions (UKEAT/0012/05), Ms Hall had a psychiatric condition that could have been controlled by medication, which she refused to take. She did not declare her condition on the health declaration form before being recruited. Within a few days in her new job she began to clash with colleagues and after a series of clashes she was suspended. She was dismissed for failure to comply with conduct standards. The EAT held that there was a failure by the employer to address the question of reasonable adjustments. However, it also held that no reasonable adjustment could have been made because Hall refused to take medication.

In Electronic Data Systems Ltd v Travis (4 March 2004 EAT), Clive Travis, a software engineer, was off work with schizophrenia between May 1994 and January 1995, September 1995 and December 1996, and June 1997 until August 1999. When he returned to work, his IT skills were out of date. The employers then underwent several restructuring exercises and eventually it was decided to make Dr Travis redundant because there were no income-generating jobs he could do.

An employment tribunal upheld Dr Travis’s disability discrimination claim on grounds that the employers failed to make a reasonable adjustment by failing to offer him retraining to update his skills, placing him at a substantial disadvantage. The EAT upheld this finding.