The scope of the duty to make reasonable adjustments imposed by
the Disability Discrimination Act has been the subject of a number
of recent decisions.
We have previously reported on two cases dealing with the issue
of whether paying disabled employees full pay during periods of
sickness absence could ever be regarded as an adjustment which an
employer may reasonably be required to make. The Court of Appeal in
Nottinghamshire County Council v Meikle suggested that it
may be, whilst the EAT in O'Hanlon v HM Revenue &
Customs seemed to be of the contrary view. Since we last dealt
with this issue, the approach in the O'Hanlon case has
found favour, both in the Court of Appeal (which dismissed Mrs
O'Hanlon's appeal against the decision of the EAT) and in a
differently constituted EAT in the case of Fowler v London
Borough of Waltham Forest. The Fowler case is worth
having a quick look at because it provides further confirmation
that the decision in Meikle is very much one on its own
facts.
Mr Fowler was employed as an 'outdoor facilities manager' - in
old money, a park keeper. The park at which he worked was clearly
not a very pleasant place at all. It was frequented by drug addicts
and other individuals more intent on criminal activities than in
innocent pursuits such as walking the dog and feeding the ducks. As
a consequence of the environment in which he was expected to work,
Mr Fowler developed post traumatic stress disorder and that led to
a lengthy period of sickness absence. During his absence from work,
Mr Fowler was assessed as being fit for redeployment into an office
job but he did not consider that such a job was for him. Indeed,
neither Mr Fowler nor the Council's Occupational Health Department
could identify a suitable alternative post.
The EAT agreed with the Employment Tribunal that the Council had
not failed to comply with the duty to make adjustments. It would
not have been reasonable for Mr Fowler to have been paid his full
pay, or even full sick pay, during the whole of his sickness
absence. Further, permitting Mr Fowler to take early retirement or
voluntary severance would not have been a reasonable
adjustment.
With regard to the Meikle case, the EAT distinguished
that case on the basis that Ms Meikle's absence from work was
caused by her employer's breach of the duty to make adjustments,
whereas there was nothing that Mr Fowler's employers could
reasonably have done to get him back to work. The EAT also made
clear that, as far as it was concerned, there is nothing in the
Meikle decision that suggests that payment of full pay
during sickness absence is, by itself, to be regarded as a
reasonable adjustment.
In Spence v Intype Libra Limited, the EAT considered
whether the failure to obtain and consult upon an up to date
medical report on an employee can constitute a failure to make a
reasonable adjustment.
The facts of the case are straightforward. Mr Spence was an IT
manager. He suffered, what is described as, a 'vascular event'.
That resulted in him having severe arm pain. He was signed off work
for a period of one year. For whatever reason, Mr Spence's
employers did not have a particularly up to date medical report at
the time they dismissed him.
The Employment Tribunal rejected Mr Spence's complaint of
disability discrimination. In so doing, it concluded that the
absence of an up to date report did not constitute a failure to
make reasonable adjustments. Mr Spence appealed to the EAT.
In rejecting Mr Spence's appeal, the EAT placed some reliance
upon passages in the leading case of Archibald v Fife
Council to the effect that the duty to make reasonable
adjustments is not an end in itself but that the duty is intended
to shield employees from the disadvantages at which their
disabilities might otherwise place them. On that basis, the EAT
said that "the carrying out of an assessment or the obtaining
of a medical report does not of itself mitigate or prevent or
shield the employee from anything. It will make the employer better
informed as to what steps, if any, will have that effect, but of
itself it achieves nothing." In a similar vein, the EAT
continued that it is envisaged that the steps that an employer is
required to take in order to comply with the duty to make
adjustments "will have some practical consequence of preventing
or mitigating the difficulties faced by a disabled person at work.
It is not concerned with the process of determining which steps
should be taken."
It is important to bear in mind that, in the Spence
case, the EAT was not dealing with any claim for unfair dismissal.
Had it been doing so, a different conclusion as to the necessity of
obtaining an up to date medical report may have been reached. The
absence of up to date medical evidence may well have rendered an
otherwise fair dismissal unfair. However, the EAT was clear that a
failure to obtain such evidence could not amount to a breach of the
duty to make adjustments.
The common ground between the decisions in, on the one hand, the
O'Hanlon and Fowler cases and, on the other hand,
the Spence case is that the duty to make reasonable
adjustments is there for a purpose and that purpose is to assist
disabled persons to integrate into the workforce. There can
therefore be no breach of the duty unless the steps that the
employer has failed to take are steps that, if taken, would have
helped to achieve that purpose.
