Under Section 4A of the Disability Discrimination Act 1995 (DDA), employers had a duty to make reasonable adjustments to working practices in order to ensure that a disabled employee was not disadvantaged. Under the Equality Act 2010, which has now replaced the DDA, this duty remains largely the same.
In a recent case (Tameside Hospital NHS Foundation Trust v Mylott), the Employment Appeal Tribunal (EAT) held that an employer’s failure to take steps to facilitate a disabled employee’s application for ill health retirement was not a breach of Section 4A of the DDA. Whilst upholding other findings of disability discrimination against the Tameside Hospital NHS Foundation Trust, which related to its handling of Mr Mylott’s situation when he was absent from work for a long period with work-related stress, the EAT overturned this aspect of the judgment of the Employment Tribunal (ET). In the EAT’s view, the duty under Section 4A did not extend to enabling a disabled employee who was no longer able to do their work (or any available alternative) to leave their employment on favourable terms. The whole concept of an adjustment is that it is made in order to make it possible for the disabled employee to remain in employment. It does not extend to taking steps to ensure that they are compensated for no longer being able to do so.
On a second point, the EAT upheld the Trust’s appeal against an award of £6,000 in aggravated damages made to Mr Mylott following the ET’s finding of malice against Mr Mylott’s manager. Having examined the ET’s reasons for its decision, the EAT considered that a finding of malice is ‘a serious finding, which is not to be made lightly and which must be fully supported if made’. Whilst the ET was justified in finding that Mr Mylott’s manager had on occasion been ‘brusque’ and ‘insensitive’, this did not justify a finding of malice. Nor did its observations that the manager in question had a ‘dismissive’ manner when giving evidence and that her answers were sometimes evasive support a decision to award aggravated damages.
Disability Discrimination - Limits on Duty to Make Reasonable Adjustments
Whilst this decision clarifies the scope of an employer’s duty to make reasonable adjustments for a disabled employee, long-term sickness absence is a difficult area of the law and we strongly recommend that you take advice based on your specific circumstances before taking any action.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
