salfordnhs_smithEAT2011
EAT DISABILITY DISCRIMINATION ACT
The Claimant was a physiotherapist employed by the Respondent in a managerial position. At the relevant time she was on long term sick leave because she suffered from chronic fatigue syndrome. She was signed off work by her GP and was unable to return to her post or perform any productive work. It was accepted that she was disabled within the meaning of the Disability Discrimination Act 1995.
She maintained that the Respondent failed to make reasonable adjustments to facilitate an eventual return to work, contrary to its duties under ss 4A and 18B.
The Employment Tribunal found that the relevant PCP was the expectation the Claimant would perform her full role within the contracted hours, and that she was thereby placed at a substantial disadvantage.
The Employment Tribunal found that attempts should have been made to produce something for the Claimant to do by way of rehabilitation, not necessarily productive, to enable the Claimant to go to her doctor to say, ‘Doctor, this is what they suggest I do involving perhaps light duties two or three hours a day, two hours a week. Will you please sign me off to go back to work?’ notwithstanding that her GP maintained that at the time she was unable to perform any work at all.
The Claimant maintained that an alternative reasonable adjustment was to permit her to take a career break.
Neither proposed adjustment constituted a reasonable adjustment within the meaning of the Act as they did not prevent the PCP placing the Claimant at a substantial disadvantage in comparison with persons who were not disabled. Reasonable adjustments are primarily concerned with enabling the disabled person to remain in or return to work with the employer. Matters such as consultations and trials, exploratory investigations and the like do not qualify as reasonable adjustments.
Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 and Environment Agency v Rowan [2008] IRLR 20 applied.
Serota QC J
[2011] UKEAT 0507 – 10 – 2608
Bailii
Disability Discrimination Act 1995
England and Wales
Employment, Discrimination
Updated: 11 November 2021; Ref: scu.443576
