Tribunal finds failure to adjust sickness policy for disabled worker was discriminatory

The Employment Appeal Tribunal has confirmed that a NHS Trust was in breach of its duty to make reasonable adjustments when it failed to adjust its sickness absence management policy for an employee suffering from chronic fatigue syndrome.

The Trust’s policy had four incremental stages, in each case triggered by a certain number of absences in a 12 month period. At a stage 1 review meeting back in 2011, the Trust had agreed to change the trigger point for the claimant, so that she only reached it after five absences, rather than the standard number of three. That was because it was accepted that she was likely to have a higher than average absence rate due to her disability.

That adjustment appeared to have worked for the claimant, because no trigger points under the adjusted policy were reached for the next four years. However in 2015 the Trust had a change of heart. It decided that due to recent case law it was no longer required to adjust the trigger points, and told the claimant that this concession would be withdrawn (though until shortly before the hearing it denied that it had been put in place as an adjustment). Despite other adjustments (such as part-time working and a reduction in her workload) she soon reached the first trigger point, and then progressed fairly rapidly through all four stages of the absence management policy. She was finally dismissed two years later.

She claimed that if the adjustment had not been withdrawn, she would not have lost her job. The tribunal upheld her claim for breach of the duty to make reasonable adjustments, discrimination arising from her disability, and unfair dismissal. The EAT has now dismissed the Trust’s appeal.

What are we to make of this case? Two points spring to mind:

• The claimant’s case was strengthened because she was able to show the adjustment she was asking for had worked in the past. It is true that employers are not always required to adjust their absence management policy for disabled employees. However each case needs to be assessed individually. An adjustment is more likely to be regarded as reasonable if it is relatively modest and there is at least a chance that it will help the claimant keep their job.
• It is important for employers to be consistent about adjustments, and make sure there is a proper record of past adjustments, in case there is a change of line manager. The Trust failed on both counts in this case. Employers may wish to consider addressing these issues by developing reasonable adjustment “passports” along the lines recommended by the TUC earlier this year.