Disability And The Need To Make Adjustments

September 25, 2015

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Everybody knows (or should know) that the Equality Act 2010 protects disabled employees. Disability is a protected characteristic. Employers are required to make reasonable adjustments to ensure that those with a protected characteristic are not placed as a disadvantage by virtue of that characteristic. This is often called the duty to make reasonable adjustments. However when does that duty arise? In the case of Doran -v - Department for Work and Pensions the Employment Appeal Tribunal (in Scotland) helped to clarify this. Miss Doran started working for the Respondent in 2009 but unfortunately developed health problems which culminated in her being signed off work for a long period due to stress related illness.

Neither Miss Doran nor her doctor could give an indication as to when she would be likely to return and accordingly her employment was terminated on the basis of continuing ill health. Miss Doran made the claim to the Employment Tribunal indicating that no adjustment had been made. The outcome of her case was that the duty to make adjustments was not triggered until there was a clear indication of the date on which the employee could return to work. In one sense this creates a difficulty for an employee. An employee might indicate that they cannot return to work until the adjustment is made, but the employer might then say that they cannot consider the adjustment until the employee has indeed returned to work or given a set date when this might occur. The answer might be for an employee to indicate that they can return to work on a specified date provided certain adjustments are made (always reserving the right to seek further or other adjustments in the event that the adjustments originally discussed do not create the desired outcome). What is clear from the Doran case is that it is not appropriate for an employee to simply indicate to an employer that they are not prepared to even consider a return to work until the employer has clarified and put in place the adjustments they propose.

 

If you need advice on this or any other Employment matter, please contact Simon Dodds or Quintin Barry on 01323 720142

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