Employment: Re-instatement/disability discrimination

30 July 2007

An employer’s duty to make reasonable adjustments under the Disability Discrimination Act (DDA) is relevant but not conclusive when a Tribunal considers whether to order re-instatement of an employee after an unfair dismissal; the date on which the practicability of re-instatement should be assessed is the date on which any order would take effect.

The recent EAT decision in the case of Great Ormond St Hospital v Patel is useful for employers who have to decide how to manage the case of an employee who develops a medical condition which may ultimately affect their ability to continue in work. The employee’s main responsibility was to carry out ultrasound scans but she developed a wrist condition which made it difficult for her to do that job. The employer kept her on in a management and training role only while her condition was monitored and assessed. Eventually, a medical report concluded that there was no prospect of her condition improving. She was dismissed as redundant. She complained of unfair dismissal and disability discrimination. The Tribunal decided that she had been unfairly dismissed on procedural grounds and also that the employer had failed to make ‘reasonable adjustments’ under the DDA (a finding not contested by the employer, on the assumption that compensation would be awarded to cover both claims). Unusually, the employee then asked the Tribunal for a reinstatement order rather than compensation for unfair dismissal. The Tribunal made the order on the basis that if the employer had made reasonable adjustments under the DDA this would have enabled her to remain in post with the management and training functions that she had been fulfilling at the time of her dismissal. The employer appealed and the EAT has allowed its appeal. While an employer’s failure to make adjustments may be relevant in deciding whether to make a re-instatement order, the law requires the Tribunal also to consider whether it is ‘practicable’ to make such an order. The employer had created a temporary role for the employee while her medical condition was being assessed. After her dismissal, she had not been replaced at all. There was no ongoing need for the role and a re-instatement order was not intended to enforce over-manning. The practicality of replacing her had to be assessed now, not as at the time when she had been dismissed.

Points to note:

  • Employers are not required to do more than make reasonable adjustments for disabled employees. They cannot be expected to create new posts for them which are not in fact necessary. Medical evidence is critical in deciding what steps it would be reasonable for the employer to take

  • Employers faced with multiple claims should appreciate that each claim must be dealt with separately and appropriately. In the cases of employees facing dismissal on grounds of capability, the DDA will be relevant as well as the Employment Rights Act and it is important to obtain advice on how the two statutory regimes work together.