Under the Disability Discrimination Act 1995 (DDA), the duty on an employer to ‘’make reasonable adjustments’ for a disabled employee does not require the employer to consult with the employee about other options before dismissing on grounds of ill health.
In E A Gibson Shipbrokers v Staples a high-earning ship broker had a heart problem and went on extended sick leave. He exhausted his sick pay entitlement and his entitlement under the employer's PHI scheme. The employers paid his salary for a few more months but then stopped and a month later dismissed him on grounds of ill-health. The tribunal found that there had been a failure by the employer to make 'reasonable adjustments' under the DDA in that there had been no consideration of the possibility of a phased return to work or working from home and so the dismissal was discriminatory as well as being procedurally unfair. It also found that the employer should have paid full sick pay right up to the date of dismissal.
The employer appealed and the EAT has said that the case must be remitted to the tribunal for two questions to be reconsidered:
- A failure to consider making adjustments is not a breach of the duty to make adjustments to prevent some ‘provision criterion or practice’ from having the effect of discriminating against a disabled employee. Even where a breach of that duty can be found, a tribunal must say not only what steps it thinks the employer could have taken by way of reasonable adjustments but also what chance there was that that they would have actually prevented or delayed the dismissal.
- Following the Court of Appeal decision in O'Hanlon v HM Revenue & Customs, paying a disabled employee more than their contractual entitlement to sick pay will only be a 'reasonable adjustment' where the making of other specific reasonable adjustments would have resulted in the disabled employee being back at work.
Points to note:
- Before an employer can be blamed for not making reasonable adjustments under the DDA there must be evidence of what that adjustment would be but also as to whether it would have made any difference.
- It will only be in an exceptional case that the payment of full pay when contractual sick pay has been exhausted will be a ‘reasonable adjustment’ under the DDA – where making other specific adjustments would have resulted in the disabled employee being back at work.