The Employment Appeal Tribunal (EAT) decision in Gillespie v Guy's & St Thomas' NHS Foundation Trust is a reminder to employers not to overlook the issue of reasonable adjustments.
Facts
Ms Gillespie (Ms G), was a Community Staff Nurse and was absent due to sickness from employment with Guy’s & St Thomas’ NHS Foundation Trust (the Trust) from May 2016 until her resignation in December 2018 She was suffering serious illness which prevented her from standing for more than two or three minutes at a time and from regular manual handling.
Ms G was sent a redeployment registration form by the Trust which she had failed to return. A sickness absence meeting was held in her absence in November 2018. She then sent an email to the Trust complaining that there had been no contact about the possibility of redeployment and resigned in December 2018.
Ms G submitted an ET claim in January 2018 alleging disability discrimination.
Following her resignation, she applied to and was allowed to add claims for constructive unfair
dismissal and failure to make reasonable adjustments to her ET claim. She argued the Trust's provision, criterion or practice (PCP) of requiring an employee to be fit and well enough to perform their relevant duties put her at a substantial disadvantage in comparison with those who were not disabled.
Had the Trust actively engaged in the redeployment provision in the sickness absence policy, she may have been able to return to work given the content of an Occupational Health (OH) report of June 2018, and that amounted to a failure to make reasonable adjustments.
The OH report advised she was unfit to work in her substantive role but could work in a role which did not require walking or standing for more than two or three minutes or regular manual handling.
The ET dismissed the claim of failure to make reasonable adjustments and she appealed to the EAT
Law
An employee is classed as having a disability under section 6 of the Equality Act 2010 (EqA) if they have a “physical or mental impairment” that has “a substantial and long-term adverse effect” on their “ability to carry out normal day-to-day activities”.
The duty to make reasonable adjustments is set out in section 20 (3) EqA as:
“… where a provision, criterion or practice of [the employer] puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, [the employer must] take such steps as it is reasonable to have to take to avoid the disadvantage.”
Decision
The EAT allowed the claimant’s appeal. The ET had concluded that because there was no general practice of applying the redeployment policy as it had been applied to Ms G, by failing to contact her about redeployment, this meant that no relevant PCP had been applied to her at all.
The EAT ruled that was not in fact the PCP identified by Ms G and the ET had lost sight of the PCP relied upon by the claimant. The relevant PCP was in fact of “requiring the claimant to be fit and well enough to perform her contractual duties”. As such the ET had failed to determine the reasonable adjustments claim presented to it and the claim was remitted back to the original ET for determination of whether the PCP (i) was applied to the claimant; (ii) placed her at a substantial disadvantage in comparison with persons who are not disabled and, if so; (iii) would it have been reasonable to redeploy the claimant to some alternative role because there was a prospect that she would have been able to undertake it.
Comment
Katherine Irvine, Associate in our Employment team said:
“It remains to be seen what the ET will decide this time. The EAT stated in its decision however that ‘if a disabled person is unfit to carry out the duties of her role, but another role is available that she would be able to undertake, provision of that role is a paradigm example of a reasonable adjustment’.
“This will have proved a time consuming and presumably very expensive claim already. As such, when faced with sick or disabled employees in the workplace, it is useful to remember what employers should be thinking about to minimise the risk of claims to the ET.
“Where a capability issue is linked to an employee’s ill health, tribunals expect dismissal should be used as a last resort. Employers should explore whether there is a disability and if so, ways in which it can help an employee to do their job or return to work by way of making any reasonable adjustments within the workplace to remove any substantial disadvantage.
“What is considered reasonable as an adjustment will depend on the facts of each case. Generally, consideration should be given to the cost of making any adjustments, the size of the employer and extent of any resources available to it and how practical and effective the adjustment is likely to be.
“If an employer has properly explored potential reasonable adjustments to enable the employee to perform their duties, found there are none applicable or none that have succeeded to remove any disadvantage to him/her, and there is no viable alternative to dismissal, it will minimise the risk of moving to termination of employment on the grounds of capability.
“The onus will be on the employer to evidence this to the ET if a claim is raised and as such it is always advisable to seek legal advice when managing the absence of a sick or disabled employee.”
