Reasonable adjustments could include finding alternative employment by informal means.

The case London Borough of Southwark v Charles is a clear example of the proactive approach expected of employers when it comes to the obligation to make reasonable adjustments for disabled employees.

Facts

Charles was one of several employees placed at risk of redundancy who joined a redeployment pool for the purpose of finding an alternative post. Shortly after receiving notice of the termination of his employment, Charles was signed off sick for three months with a medical condition which affected his sleep and which led to him suffering from depression. As such, his employer referred Charles to occupational health which informed the local authority that he was unfit to attend administrative meetings.

As part of the redeployment exercise, the employer asked Charles, by email, if he was well enough to attend an interview for an alternative position which was two grades lower than his current (redundant) role. Charles failed to confirm his interest in the role and did not respond to telephone calls from occupational health because he had switched off his mobile telephone. He also did not respond to a further email from his employer attaching the details of another four vacancies for which he might be considered if he expressed an interest in them.

As it had not heard from Charles in respect of the alternative roles, the employer wrote to him confirming his dismissal “in the absence of receiving an expression of interest” from him and because it had received “no indication as to whether he was able to attend interviews”. Charles’ appeal against the decision to dismiss him was rejected and he went on to bring a claim for unfair dismissal and disability discrimination in the employment tribunal.

Tribunal and EAT

The employment tribunal and the Employment Appeal Tribunal upheld Charles’ complaint of disability discrimination on the basis that the requirement that he attend an interview for the alternative roles amounted to discrimination arising from a disability and a failure to make reasonable adjustments. In reaching the latter conclusion the tribunal placed particular emphasis on the fact that the employer had been made aware that Charles was unfit to attend administrative meetings.

Comment

The employer in this case was criticised for failing to dispense with the need for Charles to attend an interview: reasonable adjustments could have included suggesting an informal assessment of his capabilities at his home or by requiring information from him in a different format.

This case illustrates that employers should take a proactive approach to reasonable adjustments, particularly when it comes to engaging with employees who are signed off from work and with whom it can be difficult to communicate.

Paul Mander is a partner, and Lauren McLardie an associate, in the employment department at Penningtons Manches

Article taken from http://www.cipd.co.uk/pm/

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