Reasonable adjustments and sickness absence

A phased return to work can be a reasonable adjustment (London Borough of Hillingdon v Morgan (UKEAT1493/98/2705). In this case, there was evidence that a couple of months spent working from home might have been sufficient to enable this ME sufferer to return to work. The council had this kind of work available but failed to investigate it properly. This failure amounted to disability discrimination.

But in Salford NHS Trust v Smith (EAT05/07/10), the EAT reminded tribunals that the duty to make reasonable adjustments is limited to a duty to consider changes that may enable an employee to remain in or return to work. There is no general duty to focus on promoting rehabilitation for its own sake.

In the Salford case, Ms Smith, who suffered from chronic fatigue syndrome, asked to be given non-productive rehabilitative work, in the form of light duties or a career break. Her occupational health adviser supported her case. She was not fit for any productive work and neither adaptation would have enabled her to return to her role. The tribunal concluded that neither suggestion was a “reasonable” adjustment.

The statutory duty to make reasonable adjustments is unlikely to extend to a duty to adjust a sick pay policy to pay more generous sick pay to a disabled than a non-disabled worker (O’Hanlon v Commissioners for HM Revenue & Customs [2007] EWCA Civ 283), although it might be a reasonable adjustment to pay full pay to a worker who remains off sick because their return to work has been prevented by the employer’s failure to make reasonable adjustments (Nottinghamshire CC v Meikle [2004] EWCA Civ 859). (For more information on reasonable adjustments see Chapter 6: Disability Discrimination).