Two important EAT decisions have been handed down this summer concerning the duty to make reasonable adjustments.
In the first of these cases (in which Addleshaw Goddard acted for Sainsbury's), the EAT has ruled that a failure to consider reasonable adjustments is not itself a breach of the duty to make reasonable adjustments. If there are no reasonable adjustments that can be made for a disabled employee, the employer will not have acted unlawfully even if it failed to consider the issue and discuss it with the employee (Tarbuck v Sainsbury's Supermarkets Ltd).
Dr Louise Tarbuck worked as a business analyst and IT project manager for Sainsbury's. She suffered from ulcerative colitis and depression resulting in absence from work. She brought claims for disability and sex discrimination, which were settled by way of a settlement agreement in October 2002, which provided for Sainsbury's to facilitate Dr Tarbuck's return to work from March 2003.
In June 2003, Dr Tarbuck was informed she was "at risk" of redundancy. “At risk” employees were given priority when applying for internal vacancies. She appealed against her "at risk" status, claiming it unfairly disadvantaged her and prevented her return to work post-rehabilitation. Sainsbury's subsequently removed it which meant she was no longer given priority when applying for internal vacancies. Her subsequent application for a project manager role in Finance Systems was unsuccessful.
Subsequently, she was placed formally "at risk" of redundancy a second time. She then commenced a period of sick leave lasting until her employment terminated by reason of redundancy on 2 February 2004. One of the central issues in Dr Tarbuck's disability discrimination claim was whether Sainsbury’s had failed to make a reasonable adjustment by failing to consult with her over alternative employment. The employment tribunal found that it had.
The case went to the EAT which upheld a point raised by Sainsbury's and ruled that Sainsbury's failure to consult with Dr Tarbuck did not of itself a breach of the duty to make reasonable adjustments
This decision does conflict with an earlier EAT authority and the DRC's Code of Practice in this area so a Court of Appeal decision is needed to determine the issue conclusively. It also remains advisable for employers to meet with disabled employees to discuss particular ways in which any disadvantage may be removed. This is especially important given that it is no longer possible for an employer to justify any failure to make a reasonable adjustment.
In the second case, O'Hanlon v Commissioners of HMRC the EAT held that an employer would only very rarely be obliged as a reasonable adjustment to give more sick pay to a disabled employee than it would otherwise give to a non-disabled employee on sick leave.
Mrs O'Hanlon who suffered from clinical depression had a total of 365 days sick leave over 4 years 320 of which related to her disability. The HRMC's sick pay policy broadly provided that full pay would be provided for up to 6 months absence in any 12 month rolling period and half pay for up to a further 6 months subject to an overriding maximum of 12 months paid leave in any 4 year period. Mrs O'Hanlon argued that she was substantially disadvantaged by the sick pay scheme compared to a non-disabled employee and that the HRMC had failed to make a reasonable adjustment to its policy by not continuing to pay her in full during her absence. While the Tribunal held that Mrs O'Hanlon had been substantially disadvantaged it decided that HRMC had not failed in its duty to make reasonable adjustments. Significantly, it had taken all reasonable steps to help Mrs O'Hanlon back to work to alleviate the disadvantage she was under. The EAT noted that the Disability Discrimination Act 1995 was designed to recognise the dignity of disabled people and was not intended to place disabled employees in a more favourable position than non-disabled employees.
This decision provides clarification for employers following the uncertainty created a couple of years ago by the case of Nottinghamshire County Council v Meikle  IRLR 703. In that case it was decided that the employer had failed in its duty to make reasonable adjustments by not amending its sickness policy so that Mrs Meikle could continue to receive full pay while absent form work due to her disability. It is now clear that the employer was under a duty to adjust its sick pay policy in this case because Mrs Meikle's absence was found to be occasioned by the employer's failure to make reasonable adjustments in terms of the arrangements for her job.
It will, therefore, be a rare case where giving higher sick pay than would be payable to a non-disabled employee would be considered necessary as a reasonable adjustment. To avoid falling in to this narrow category, employers should ensure that they take all reasonable steps open to them to ensure that the employee's condition does not worsen and therefore cause the sickness absence or cause it to last longer that would otherwise be the case.
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