Sickness and Reasonable Adjustments
Mr Olenloa went sick with an ‘adjustment disorder’ in September 2010 and started a grievance process through the Employment Tribunal (ET) system in October 2010. This ET claim was the same as a grievance that he had raised with North West London Hospitals, in that they had failed to make reasonable adjustments to cater for his disability. These adjustments were required under the Disability Discrimination Act (DDA) and, subsequently the Equality Act (EA) 2010 (when the DDA was incorporated into the EA in October 2010).
On taking into consideration Mr Olenloa’s evidence only, a Pre-Hearing Review (PHR) judged that much of the claim was made out of time. His grievance, concerning reasonable adjustments in the period up to his last day at work before sickness, was made just over a month late. The PHR ruled ‘there is no on-going discrimination to make reasonable adjustments that I can see, as the claimant simply is unable to be at work’. The PHR concluded that the employer’s obligation to make reasonable adjustments ended when Mr Olenloa went sick, as they were of questionable practical value if they carried on. Mr Olenloa made subsequent appeals about North West London Hospitals’ delays in the grievance process plus raised issues regarding payment during the sickness period and his possible redeployment. These claims were judged at the PHR to have been made within the time limits.
Mr Olenloa appealed against the PHR decision not to consider his first claim, which was judged to have been made outside of the time limits.
At the Employment Appeal Tribunal (EAT), Mr Olenloa was successful in getting his first grievance considered. The EAT ruled that to correctly determine the limitation date, the PHR judge should not have only considered evidence from Mr Olenloa – i.e. facts from both sides of the argument should have been taken into account about whether North West London Hospitals had, or had not, made the necessary reasonable adjustments. In short, the EAT ruled that the PHR judge had made a factual error and could not have assessed whether the reasonable adjustments were sufficient to either allow Mr Olenloa to remain in work or to allow him to return to work.
Comment
Much of this (somewhat complicated) ruling concerns time limits and the error of the PHR judge not taking into account all of the necessary evidence. However, it does serve to remind employers that they have a duty to make reasonable adjustments – the three requirements on employers from Section 20 of the Equality Act 2010 are:
- Where a provision, criterion or practice [PCP] puts a disabled person at a substantial disadvantage in………comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage
- Where a physical feature puts a disabled person at a substantial disadvantage…….in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage
- Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in………comparison with persons who are not disabled to take such steps as it is reasonable to have to take to provide the auxiliary aid
Further, the responsibility to provide these adjustments does not end when an employee goes sick. Indeed, making the reasonable adjustments may prevent an employee going sick in the first instance. Certainly, failure to continue to make adjustments may prevent an employee’s return to work.
Further Information
- Bailii – Mr S Olenloa v North West London Hospitals NHS Trust
- Legislation Website – Equality Act 2010
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