In the recent case of Salford NHS Primary Care Trust V Smith, the Employment Appeal Tribunal (EAT) discussed the issue of what is considered to be ”reasonable adjustment’ under Section 4 of the Disability Discrimination Act 1995.
In this case, Smith had worked for the NHS since 1993. In March 2007 they were signed off on sick leave due to a chest infection, and by September 2007 had been diagnosed with Chronic Fatigue Syndrome, commonly known as ME.
Smith was therefore from this point classed as a Disabled worker under the Disability Discrimination Act 2005 and was placed on long term sick leave. During this period, numerous meeting were undertaken between Smith and Occupation Health to discuss in what capacity, Smith could return to work. It was noted at each meeting that there was always a possibility that Smiths employment may be terminated on the grounds of capability.
By January 2012, it was clear to the occupational heath department that Smith was not capable to returning to work in her current managerial role. It was therefore suggested that a less intensive role with lesser hours be sought for Smith to allow them to return to work in some capacity. This return would be on a phased basis.
By February 2008 it was suggested that Smith take a career break, so that they could spend time recovering and return when fully fit to undertake their current role. This proposal was rejected by the NHS as an unsustainable proposal.
Smith’s partner raised issue with the above proposals wishing for more concrete answers to be provided, further making request for options of rehabilitation and an assessment as to what work Smith could undertake at this time.
In April 2008 Smith informed the NHS that they were unable to return to their current position, nor return to their current place of work due to its busy nature. Smith rejected offers of administrative posts, IT training and failed to identify a location they deemed suitable in which they could return.
Meetings were scheduled in May and June for further discussion, however Smith failed to attend, and subsequently handed her notice. Smith then brought a claim of constructive dismissal and disability Discrimination on the grounds that the NHS had failed to make reasonable adjustment to accommodate their return to work.
At Tribunal, it was held that a Smith had been deemed capable of rehabilitation, and thus should have been offered a phased return with light duties. Failure to offer this resulted in a fundamental breach of mutual trust and confidence, and thus Smiths Claim succeeded.
However at the EAT, the original decision was overturned, on the basis that Smith had been offered a number of different position, an training opportunities both on a full and part time basis, none of which they felt able to undertake. The EAT thus ruled that Smith was incapable of undertaking any job at the time, and further no chance that they would ever return to their original position.
The NHS had acted in the EAT’s mind by the book, giving Smith more than ample opportunity to return to work with the full support of the organisation. Smith never disagreed with any review made by the Occupational Health advisor and failure to attend later meetings showed weakness in their argument that confidence had been lost.
This case serves as a good example as to the actual meaning of reasonable adjustment in these cases. The aim is to facilitate the employees return to, or to ensure they remain in, work, not to aid in their overall recovery.
In remembrance of Dennis Chapman 1951 -2015