In this article...

• The background
• The facts
• The tribunal’s decision
• The EAT’s decision
• What does it mean for me?

The EAT has confirmed that an employer is not required, as part of the duty to make reasonable adjustments, to discuss options for alternative work with a disabled employee who is absent on long-term sick leave. Nevertheless, Mugni Islam-Choudhury points out that there are a number of potential pitfalls for the employer who fails to consult.

The background

Section 4A of the Disability Discrimination Act 1995 (DDA) places an employer under a duty to make reasonable adjustments where a disabled employee is placed at a substantial disadvantage by a provision, criterion or practice applied by the employer or by any physical feature of the employer’s premises. The kinds of adjustments envisaged are necessarily fact-specific but may include reallocating the disabled person’s duties, altering his or her hours of work or acquiring special equipment.

Recent case law has focused on whether an employer needs to carry out a detailed assessment of the possible adjustments that may be required, or consult with the employee in question, before implementing the necessary steps. In Mid Staffordshire General Hospitals NHS Trust v Cambridge the Employment Appeal Tribunal (EAT) held that an employer’s failure to make an initial assessment to decide what steps it would be reasonable to take amounted, in itself, to a breach of the duty to make reasonable adjustments.

In Tarbuck v Sainsbury’s Supermarkets Ltd, however, another division of the EAT held that an employer is not under a separate and distinct duty to consult with the disabled employee about the steps that may be needed. According to the EAT, the only issue is whether, objectively, the employer has made the necessary adjustments.

The facts

The issue has recently been revisited in Scottish and Southern Energy plc v Mackay. Mr Mackay had worked for Scottish and Southern Energy plc since 1980, latterly as an appliance repair engineer. The company introduced new methods of working which significantly increased the pressure on him, and in May 2003 he was signed off sick with depression.

During the months that followed, the company obtained medical reports from a number of sources, including its own medical adviser, an occupational physician and a consultant psychiatrist. The evidence suggested that Mr Mackay would be unable to resume his previous duties and would need to be redeployed if he ever became well enough to return.

In January 2004 Mr Mackay started working in a supernumerary role at the company’s power station at Stornoway, shadowing fellow employees. In July 2004 he again became unfit for work and the company subsequently activated its long-term sickness absence policy.

In May 2005 the company held a review meeting. Mr Mackay’s representative suggested that a permanent job in the power station would be suitable for him and the company subsequently sent Mr Mackay a job profile relating to a forthcoming craftsman vacancy. However, the company’s medical adviser thought it unlikely that Mr Mackay could take up the post in the foreseeable future.

By letter dated 7 September, Mr Mackay indicated that he would be pleased to accept the craftsman vacancy and undertake the necessary training. Nevertheless, he was dismissed with effect from 30 September 2005. At that point he had been absent from his previous role for over two years; there were doubts on the part of the company as to whether he could pick up the necessary skills for the craftsman’s post; and the company took the view – based on Mr Mackay’s demeanour at meetings – that he was not truly committed to or enthusiastic about the alternative post.

Mr Mackay’s appeal against dismissal was unsuccessful and he brought a claim before an employment tribunal, alleging that he had been unfairly dismissed and that the company had failed to make reasonable adjustments contrary to the DDA.

The tribunal’s decision

The tribunal found that Mr Mackay was disabled within the meaning of the DDA. The company conceded that a failure to consult a disabled employee about alternative work could amount to a failure to make reasonable adjustments and the tribunal approached the claim on that basis.

The tribunal noted that Mr Mackay had expressed a willingness to do the craftsman’s job and had been led to believe that the possibility would be explored. However, the company had never directly asked him how he felt about the alternative post. In these circumstances, the company could not reasonably conclude that he lacked the necessary enthusiasm and motivation.

On this basis, the tribunal decided that the company was in breach of the duty to make reasonable adjustments. For essentially the same reason, it found that the dismissal was unfair. The company appealed.

The EAT’s decision

The EAT held that the Tarbuck approach should be followed in preference to the approach set out in the Mid Staffordshire case. Accordingly, the company’s failure to explore the possibility of alternative work more fully with Mr Mackay did not amount to a failure to make reasonable adjustments.

The EAT also expressed concern about the tribunal’s finding of unfair dismissal, noting that the company had in many respects been extremely solicitous of Mr Mackay’s welfare. Ultimately, however, it was open to the tribunal to find that in the circumstances a reasonable employer would have raised the issue of the alternative post directly with Mr Mackay in order to assess his enthusiasm for it. Accordingly, the unfair dismissal finding was upheld.

What does it mean for me?

While the EAT’s decision confirms that an employer’s failure to consult a disabled employee about alternative employment cannot, of itself, amount to a breach of the duty to make reasonable adjustments, this does not mean that there are no potential legal consequences for employers who fail to take such steps.

For one thing, a failure to consult may result in a finding of unfair dismissal, as this case illustrates. For another, an employer who fails to consult – and who therefore does not inform himself of the relevant background – is much more likely, in practice, to overlook any reasonable adjustments that need to be made.

There is also the possibility that a failure to engage in consultation before dismissing a disabled employee may result in a finding of disability-related discrimination, i.e. less favourable treatment for a reason related to the claimant’s disability. Such treatment would have to be justified in order for the employer to avoid liability under the DDA.

In the instant case the tribunal suggested that, had Mr Mackay not been disabled, there would have been a fuller investigation of the possibility of alternative employment and a greater willingness to retrain him. This raises the question whether there was disability-related discrimination. Since the DDA claim had only been pleaded on the basis of a failure to make reasonable adjustments, however, it was not open to the tribunal or the EAT to address that issue.