In Salford NHS Primary Care Trust v Smith the EAT held that it was not a reasonable adjustment for an employer to have to offer a disabled employee who was on long term sick leave a career break or require the employer to put forward a proposal for rehabilitative non-productive work for the employee to put to her GP.
Mrs Smith was on long-term sick leave for 15 months suffering from chronic fatigue syndrome. Various attempts were made to meet the Trust’s occupational health adviser’s (OHA) guidance to start a phased return to work. A number of options were put forward, but Mrs Smith, rejected them, and the Trust did not pursue the OHS’s suggestion of a career break, as it did not believe it would address any disadvantage experienced by Mrs Smith. She eventually resigned and presented a claim for disability discrimination, i.e. for failing to make reasonable adjustments to facilitate an eventual return to work, and constructive dismissal. A tribunal upheld her claim. It did not consider a career break to be a reasonable adjustment, but felt the Trust should have made a proposal for some form of rehabilitative work which Mrs Smith could present to her GP to sign her back to work.
The EAT overturned the tribunal’s decision and rejected Mrs Smith’s appeal that a career break would have been reasonable. Neither adjustment was ‘reasonable’ to alleviate Mrs Smith’s particular disadvantage, i.e. (i) offering an employee who was on long term sick leave a career break, particularly as she was on half-pay when sick but would receive no pay on a career break; (ii) requiring the employer to put forward a proposal for rehabilitative non-productive work that the employee could put to her GP in order to get back to work. Reasonable adjustments are primarily concerned with enabling the individual to remain in work or (where they are on sick leave) return to work. Steps in the process of getting the employee back to work, however reasonable or helpful to that aim, are not necessarily a “reasonable adjustment.” Furthermore, there had been no constructive dismissal since, viewed objectively, none of the employer’s behaviour had been repudiatory.
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