Reasonable Adjustments for Disability – Appeal Court Guidance

Every responsible employer knows that reasonable adjustments have to be made for disabled workers. However, in a guideline decision involving a civil servant suffering from post-viral fatigue syndrome, the Court of Appeal has ruled that that duty is not without limit.

Due to her condition, which it was agreed amounted to a disability, the woman had been absent from work for a period of 62 days. The government department in which she worked had a policy for dealing with absenteeism and she was issued with a written improvement warning and told that she could face disciplinary sanctions.

She sought to persuade the department that the period of absence should not be counted against her and that the written warning should be withdrawn. She also said that the policy should be modified to enable her to have longer periods of sick leave in the future before she would face the threat of disciplinary action.

Following a grievance procedure, however, the department refused to comply with either of those requests. The woman’s disability discrimination complaint was rejected by an Employment Tribunal, and subsequently by the Employment Appeal Tribunal (EAT), on the basis that the department could not reasonably have been expected to make either of the adjustments sought.

In ruling on her challenge to the EAT’s decision, the Court of Appeal found that both tribunals had erred in finding that the duty to make reasonable adjustments was not engaged simply because the absenteeism policy applied to all the department’s employees. There was clear evidence that the terms of the policy had placed the woman at a substantial disadvantage.

Dismissing her appeal, however, the Court found that employers are entitled to say, after a pattern of illness absence, that they should not be expected to have to accommodate an employee’s absences any longer. Although the woman was in no sense culpable for her absence, the department’s refusal to make the adjustments requested was, in the circumstances, reasonable.

In sounding a warning note to employers, however, the Court noted that the right to reasonable adjustments is just one of the protections afforded to disabled workers. Those who take disproportionate decisions to dismiss employees for disability-related absences could still be held liable for discrimination or unfair dismissal.