In the Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins, the Employment Appeal Tribunal (EAT) recently examined the extent of the employer's duty to make reasonable adjustments when offering a disabled employee reduced hours as part of a phased return to work.
Mr Higgins, an employee of Jobcentre Plus ("JCP"), had been on long term sickness due to ill health since June 2009. In August 2010, he presented a fit note recommending a phased return to work on altered hours. JCP has a policy which allows employees to work part time on medical grounds ("PTMG") over a 13 week period in order to facilitate a gradual return to work from sick leave. In accordance with this policy, JCP therefore proposed a 13 week PTMG plan to Mr Higgins. During the 13 week period, Mr Higgins would be expected to increase his hours gradually, up to his normal contracted hours. Mr Higgins, however, refused to return to work unless his manager agreed to extend the PTMG plan to 26 weeks. His request was refused and Mr Higgins was dismissed.
In the Employment Tribunal, it was held that the failure to consider an extension to the PTMG plan beyond the 13 week period from the beginning amounted to a breach of the duty to make reasonable adjustments. JCP's offer, which did not expressly state that it would review on expiry of the period and extend if necessary, was not a reasonable adjustment. JCP had therefore failed in its duty to make reasonable adjustments by not adjusting its offer before dismissing Mr Higgins. The ET considered that it was an essential step for JCP to state explicitly at the start of the 13 week period that it would extend the period if necessary.
This decision was overturned on appeal. The EAT did not see why it would generally be necessary for an employer to give some explicit guarantee of future review. Furthermore, the ET had failed to apply the facts to the correct legal test to identify whether there had been a breach of the duty to make reasonable adjustments.
In its judgment, the EAT noted that employers are often presented with fit notes recommending that employees work reduced hours for a certain duration. It commented that if the employer granted the reduced hours that the employee is capable of working or a set period, it would not always be necessary for the employer to give an explicit guarantee to extend that period. If at the end of the period, the employee continues to suffer a substantial disadvantage, the duty to make adjustments would still apply and an extension to the period of reduced working hours may be necessary, but would be judged on the circumstances at that particular time.
The Secretary of State was represented by our team in the ET and EAT. Special thanks also goes to Counsel, Nigel Grundy of Nine St Johns Street Chambers, who appeared in the ET and EAT on behalf of the Secretary of State.
If you require any advice on disability discrimination, including the duty to make reasonable adjustments, please contact our team.