Duty to make reasonable adjustments — yet more EAT guidance

The duty on employers to make reasonable adjustments for employees with disabilities has been the most frequent topic in Hogan Lovells’ newsletters this year. This week there are another two cases on this difficult area. Secretary of State for Work and Pensions (JobCentre Plus) v Higgins shows that it is necessary to identify what disadvantage the adjustment could have alleviated and the extent to which it would have been effective in doing so. The employee’s claim was that an offer of reduced working hours was in itself a breach of the duty to make reasonable adjustments.

The claimant’s GP had given him a sick note that stated that he might benefit from a phased return to work on reduced hours, following a long period of absence with a heart condition. The employer set up a ‘part-time attendance on medical grounds’ (PTAMG) plan for his return to work over 13 weeks. In the accompanying letter, the employer explained that the employee would be expected to build up gradually to his normal hours by the end of the period and that if he did not feel able to meet this target he should discuss a change in contractual terms with his manager. The employee said that he was unwilling to return to work unless the PTAMG plan was extended and he was then dismissed.

The tribunal held that an offer that expressly rejected the possibility of reviewing the 13-week period of the PTAMG plan to allow a further period was not reasonable and, because it was not adjusted before the employee was dismissed, the employer had failed to make reasonable adjustments. The Employment Appeal Tribunal (EAT) held that this finding was incorrect; it also explained why it is necessary to go through the hoops of working out what the PCP is and the nature of the disadvantage caused…

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