Hello , I know what you’re thinking, it’s that time again. Another week, another tenuous case law link. However, there is no tenuous link this week, as there is no current affairs issue to link the case to. Nonetheless that does not mean you shouldn’t read it, as it concerns long term absence and reasonable adjustments.
The questions this week are:
Do employers have a continuing obligation to make reasonable adjustments for employees who are off long term sick?
Should the Polkey deduction apply to an employee who has shown no signs of being able to work?
Mrs Harris, the Claimant, worked for Monmouthshire County Council, the Respondent, as a Senior Education Welfare Officer. The Claimant had over 20 years’ service and it was common knowledge that she qualified as being disabled under the Equality Act, due to her suffering from four chronic conditions; depression, sinusitis, asthma and an under-active thyroid.
Following the advice of Occupational Health, the Respondent allowed the Claimant to work from home in the mornings, late afternoons and Fridays. However the Claimant’s line manager changed and the Claimant made several complaints about him not supporting her home working requirements, although she asked for these not to be raised with him.
The final straw was when the Claimant’s manager called her into a short notice meeting the day after her annual leave on a day she should have been working from home. The Claimant requested that her work arrangements return to normal and then went off sick due to ill-health.
A further Occupational Health assessment determined that she was unfit to work in any role at the present time. No indication was given as to if/when she would return to work.
The Respondent held two meetings with the Claimant and hinted that it would not be able to support her absence indefinitely but did not state she was at risk of dismissal. The Claimant wrote a letter to the Respondent complaining about her manager, this time the Claimant did want the issue to be raised but the Respondent did not investigate the complaint.
The Claimant was invited to attend a third meeting, which her manager was also present for, where she was dismissed, but this was on notice to take effect in two months’ time. The Claimant appealed the decision citing lack of consultation and the Respondent’s failure to investigate her complaint.
The appeal was rejected and the Claimant applied for ill-health retirement. The application included reports from her GP and Occupational Health. The reports stated that she was not fit for work but could not declare permanent incapacity as not all treatment options had been explored.
The Respondent rejected the application and the Claimant was dismissed. She brought unfair dismissal and disability discrimination claims before tribunal. The ET accepted the claim stating that the risk of dismissal was not adequately expressed and there had been no effort to make reasonable adjustments.
It added that the most recent medical evidence in the retirement application was not taken into account, the Respondent had failed to investigate the Claimant’s complaint and the Claimant’s manager had been actively involved in the decision to dismiss. Furthermore as the ET believed the Claimant would be fit to work in the future no Polkey reduction was applied to her compensation.
The Respondent appealed and the EAT accepted the appeal. It cited the fact that despite potentially causing the Claimant’s absence there was no obligation or medical advice to suggest that the Claimant could return to work if the Respondent made reasonable adjustments for home working.
The EAT also stated that if the dismissal had been fair it would have applied a Polkey deduction as the Claimant’s absence meant the Respondent could not be expected to wait years before taking the decision to dismiss.
There is not necessarily an obligation to make certain reasonable adjustments. If there is medical evidence to suggest these adjustments will not enable a return to work then the employer is not obliged to keep making them.
Yes, an employee who will most likely not be able to return to work should have the Polkey deduction applied to their award.
Read more disability discrimination cases.