Duty to Make Reasonable Adjustments: The Refusal to Extend a Phased Return to Work

Duty to Make Reasonable Adjustments: The Refusal to Extend a Phased Return to Work

Further to an article that I wrote on 9th October 2013 regarding the scope of an employer’s duty to make reasonable adjustments the Employment Appeals Tribunal (EAT) has considered whether an employer was in breach of its duty to make reasonable adjustments by offering a disabled employee reduced hours over a fixed period.
In the case of Secretary of State for Work and Pensions v Higgins Mr Higgins was a long-serving employee at the JobCentre Plus in Liverpool. Mr Higgins was absent for a long period due to sickness and in August 2010 provided a"fit note" to his employer which stated that he may have been fit to work and recommended a phased return on reduced hours for a period of three months.
Mr Higgins proposed a phased return to work over 26 weeks. However this was rejected by his employer who suggested a Part-time Attendance on Medical Grounds (PTMG) plan in accordance with their absence management policy which was intended to increase Mr Higgins’s hours over a period of 13 weeks.
Mr Higgins did not accept this plan and refused to work unless his employer extended the PTMG. This request was refused and he was dismissed. He then claimed in the Employment Tribunal that his employer had failed to make reasonable adjustments.
The Employment Tribunal agreed with Mr Higgins and held that by failing to consider an extension to the PTMG plan beyond 13 weeks the employer had breached its duty to make reasonable adjustments. The employer appealed.
The EAT allowed the appeal. In doing so it found that the Tribunal had incorrectly identified that the provision criteria or practice (PCP) which placed Mr Higgins at a substantial disadvantage was the requirement for him to work. Whereas the correct PCP should have been the requirement for him to work his contractual hours.
Noting that employers are often presented with fit notes which last for a certain duration the EAT did not consider whether it is always necessary for the employer to give an explicit guarantee to extend this period. If at the end of the agreed period an employee continues to suffer a substantial disadvantage then although the duty to make reasonable adjustments will still apply it will be judged on the circumstances relevant at that particular time.
This case gives some further guidance on the scope of an employer’s duty to make reasonable adjustments and hopefully will help both employers and employees to better understand their rights and responsibilities in the future.
If you have a disability and your employer is failing to make reasonable adjustments or you are receiving less favourable treatment on the grounds of your race sex or age and you are looking for a solicitor specialising in disability or any other type of discrimination in Leeds please contact the dedicated employment team at Michael Lewin Solicitors on 0113 200 9720 and we will be happy to discuss your situation with you.
Written by
Anthony Fox

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