A disabled employee has lost a discrimination claim after a judge concluded that her employer had made all reasonable adjustments to avoid any disadvantage to her.

Joanne Stronach Head of Employment and HR reports on this recent case.

The employee, Ms Martin, started working for the employer in 2014. She had several stress-related absences.

In March 2017, an occupational health report advised that she had a chronic medical condition exacerbated by stress. The employer had an absence management policy under which an employee might be dismissed if they were incapable of fulfilling their role.

The policy included the option to find an alternative role for such an employee.

The employer placed Martin on its redeployment list. It gave her a temporary position within its services department, where she had access to help in applying for alternative roles. She identified some roles for which the employer considered her unsuitable, which she subsequently acknowledged.

The employer extended the redeployment period from 12 to 29 weeks, but Martin became disengaged and did not apply for some suitable roles. She told the employer that she expected to be dismissed at her forthcoming final absence review meeting and did not want her departure to be delayed.

She was dismissed in October 2017 and brought a claim on the basis that the employer’s absence management policy was a provision, criterion or practice (PCP) that put her at a substantial disadvantage, as her disability made her more likely to suffer absences than a non-disabled person and she was at an increased risk of dismissal.

The tribunal found that the policy did not put her at a substantial disadvantage, because of the employer’s discretion to find her an alternative role rather than dismissing her.

It further concluded that in any event, the employer had taken all reasonable steps to avoid any disadvantage to her.

The Employment Appeal Tribunal disagreed that the policy did not place Martin at a substantial disadvantage. As a disabled person, she was at greater risk of sickness absences than people who were not disabled and she would find it more difficult to comply with the policy’s required level of attendance.

However, the judge had been right to conclude that the employer had made all reasonable adjustments to avoid any disadvantage to her.

It had placed her in a temporary position that had given her a good opportunity to seek redeployment; it had extended the redeployment period by several weeks; she had not requested specific training during the redeployment period; she had contacted the employer to seek an “exit strategy; she had disengaged from the redeployment process and failed to apply for some suitable roles.

If you would like more information about the issues raised in this article or any aspect of employment law please contact Joanne on 01228 516666.