Fixed period of reduced hours a "reasonable adjustment"?
Fixed period of reduced hours can be a “reasonable adjustment”
It is socially and morally desirable to encourage employers to employ people with disabilities. The Equality Act 2010, which replaced the Disability Discrimination Act 1995, places a requirement upon employers to make reasonable adjustments for disabled employees in order to remove or reduce obstacles they may face in the course of their employment and prevent them from being placed at a substantial disadvantage in the workplace.
Reasonable adjustments can take a variety of forms and are tailored to the specific circumstances. Typically, they include allowing an employee to reduce his hours for a period of time or permanently; changing some work activities or moving the employee to a new type of work altogether; allowing a different venue, for example, working from home; provisions of equipment; allowing time off for counselling or therapy.
What is reasonable will depend on the circumstances. If it is not reasonable, the employer is entitled to refuse. It’s always helpful to seek guidance from case law. A recent Employment Appeal Tribunal case looked at whether an employer breached his duty to make reasonable adjustments by only offering a disabled employee reduced hours for a fixed period of time without expressly stating that it would review the period of reduced working hours and extend it if necessary. In the event, the employer’s decision to refuse the reasonable adjustment suggested by the employee was upheld in the courts.
The Secretary of State for Work and Pensions v Higgins [2013] UKEAT 0579_12_2510 (25 October 2013)
Mr Higgins was a long serving employee at the JobCentre Plus in Liverpool. In June 2009, he began a long period of absence due to a heart condition, and he was considered a disabled person within the meaning of the Disability Discrimination Act 1995 and later, the Equality Act 2010. In August 2010, Mr Higgins presented his employer with a “fit note” which recommended a phased return to work on altered hours for three months. His employer proposed a Part-time Medical Grounds ("PTMG") plan for his return to work over a 13-week period. In the letter setting out this plan, his employer stated that Mr Higgins would be expected to build up gradually to his normal hours by the end of this period and that, if he did not feel able to meet this target, he should discuss a change in his contractual terms with his manager. Mr Higgins refused to return to work unless this period was extended and suggested a phased return over a period of up to 26 weeks. His employer refused his request and dismissed Mr Higgins. Mr Higgins appealed and JobCentre Plus upheld its decision to dismiss him.
Mr Higgins presented a claim to the Employment Tribunal claiming unfair dismissal and that his employer had failed to make reasonable adjustments for him as a disabled employee under Section 20(3) of the Equality Act 2010 by failing to consider an extension to his phased return to work.
The Employment Tribunal held that it would have been reasonable for the employer to specify a return to work over a 13-week period, subject to reviews. However, the offer appeared expressly to reject the possibility of reviewing the 13 weeks to allow a further period before returning to normal working hours and thus was not reasonable. As the employer did not adjust its offer before Mr Higgins was dismissed, the Employment Tribunal considered that it followed that the employer had breached the duty to make reasonable adjustments. The employer appealed.
Decision
The Employment Appeal Tribunal (HHJ Richardson presiding) allowed the appeal on the grounds that the Tribunal had failed to properly identify the relevant ‘provision, criterion or practice’ placing Mr Higgins at a substantial disadvantage. The Tribunal had said that it was the requirement for Mr Higgins to work which placed him at a disadvantage; however, the Employment Appeal Tribunal ruled that it was actually the requirement for Mr Higgins to work his contractual hours which placed him at a disadvantage instead of just a general requirement to work. The Employment Tribunal had failed to address in its reasoning what substantial disadvantage to Mr Higgins an extension of the 13 weeks would have been effective in preventing, or how far it would have prevented it. The PTMG plan allowed Mr Higgins 13 weeks of working reduced hours on the basis of what he had suggested. The Employment Tribunal appeared to have thought that, merely because the letter contained no provision for review, it was reasonable for Mr Higgins not to have started working the hours he said he was fit to do and that it was essential for the employer to say, at the beginning of the 13-week period, that it would review and extend the period if necessary thereafter. However, it was not self-evident that this was a step that it was reasonable for the employer to have to take. The Tribunal also failed to apply the “range of reasonable responses” test when looking at the fairness of the actual dismissal.
The Employment Appeal Tribunal noted that employers are often presented with “fit notes” which last a certain duration and which request consideration of reduced hours during that time. If an employer grants the reduced hours which the employee says he is capable of working, the Employment Appeal Tribunal took the view that it will not always be necessary for the employer to give an explicit guarantee to review or extend this period. If at the end of the agreed period, an employee continues to suffer a substantial disadvantage, then although the duty to make reasonable adjustments will still be applicable, it will be judged on the circumstances relevant at that particular time. In this case, the employer was only requesting that Mr Higgins worked the hours he said he could work and that could not be a failure to make reasonable adjustments.
Comment
This seems a sensible outcome. The “fit note” Mr Higgins had provided stated that he would be fit for work on a phased return with altered hours limited to three months and the respondent had accepted this. This case demonstrates that the reasonable adjustments duty is not a blanket duty. It is for the person alleging failure to set out what substantial disadvantage is being suffered and how the adjustments would alleviate that. If the employee’s request is unreasonable (as in this case) it cannot be a reasonable adjustment. Mr Higgins’ unwillingness to trial the arrangement clearly was not helpful to his claims.
This is an interesting case for employers and highlights when the duty to make reasonable adjustments actually arises. A disabled employee returning to work after a period of absence should be kept under regular review and an employer needs to be alive to the potential need to react to changing circumstances and the need to make further reasonable adjustments as and when necessary to eliminate any substantial disadvantage caused by the imposition of any provision, criterion or practice. The case is a helpful reminder about the law of reasonable adjustments and the need to identify the substantial disadvantage which the adjustment was to avoid and the extent to which the adjustment would be effective to avoid the disadvantage.
What this decision means to employers
Depending on the circumstances of any particular case, this decision gives some support to the “wait and see” approach. In other words, when a GP issues a “fit note” suggesting a phased return to work, it is acceptable for the employer to delay any decision to extend or adjust the suggested fixed period until its expiry. At that stage, an assessment needs to be made as to whether it would be a reasonable adjustment to extend the phased return.
Notwithstanding this decision, it is advisable for employers to ensure that a phased return is kept under review with the employee throughout the agreed period and at the end of the agreed period, to determine whether, at that particular time, those adjustments are still necessary or whether they need to be reviewed/extended.
This article is intended as interest and information only. It should not be considered legal advice and the reader is encouraged to undertake their own research and study of the legislative changes before relying on the same.
