By Safia Tharoo
The Employment Appeal Tribunal recently considered the case of Secretary for Work & Pensions v Higgins (UKEAT/0579/12).
Mr Higgins had been employed by Jobcentre Plus since 1979, working part time for 23 hours p/wk. In June 2009 he began a long period of absence due to a serious heart condition and was signed off work until August 2011, when his doctor gave him a ‘fit note’ stating that he would benefit from a phased return to work for three months.
Jobcentre Plus operated an attendance policy which allowed for a ‘Part time attendance on medical grounds’ (PTMG) plan, where an employee returning from a long period of sick leave could have a phased return on reduced hours for up to 13 weeks. There was provision for a review at the end of this period with the possibility of an extension.
Mr Higgins was made aware of this policy and was asked to suggest the hours of work he felt he could reasonably complete. He suggested 6 hours p/wk for the first month, 12 hours p/wk for the second month and then 15 hours p/wk for the third month. He wanted the PTMG plan to continue for 26 weeks to allow him to decide what he felt capable of doing. In line with the company policy, the decision maker in his case made a formal decision that his suggested hours could be accommodated for 13 week. However, there was no mention of a review or an extension in that letter. Mr Higgins made clear to his manager that he would not return to work until his 26 week proposal was accepted. As a result of Mr Higgins’ failure to agree to return to work, he was dismissed as his absence could no longer be supported.
This decision was upheld on appeal as the manager who heard his case felt that it was reasonable for Mr Higgins to accept the proposed PTMG since he had a fit note from his doctor and the suggested hours were what he himself had chosen. Whilst there was the possibility of a review or extension of the 13 week period, it was not deemed appropriate to extend the period at the outset since the 13 weeks was consistent with the doctor’s suggestion. It was considered unreasonable of him not to even begin the PTMG and Jobcentre Plus considered that they had done everything possible to facilitate his return to work.
Mr Higgins brought a claim for unfair dismissal and disability discrimination. He asserted that he was a disabled person within the meaning of the Equality Act 2010 and that there had been a failure by his employer to make reasonable adjustments. It was not in dispute that Mr Higgins was disabled and therefore his employer did have a duty to make reasonable adjustments. But the EAT decided that the tribunal’s finding that this duty had been breached was flawed; they made clear that according to s.20 of the Equality Act 2010 the tribunal was required to identify the provision, criterion or practice (PCP) of the employer which the employee claimed put him, as a disabled person, at a substantial disadvantage, then consider who the non-disabled comparators were, and finally consider the nature and extent of the substantial disadvantage suffered by the employee. Then a tribunal had to consider what steps it would be reasonable for an employer to take to avoid the disadvantage, and clearly assess whether those steps would mitigate the disadvantage for the employee.
Here, it was apparent that the PCP that Mr Higgins relied on was the requirement to work his contractual hours, which his fellow employees were able to do. It was clear therefore that he was at a substantial disadvantage. In this case, the tribunal had focused on the fact that Mr Higgins had not been formally told in his decision letter that there could be a review at the end of the 13 week PTMG. They decided that omission meant that Jobcentre Plus had failed in its duty to make reasonable adjustments. However, the EAT took the view that the tribunal had not made clear why it was reasonable for Mr Higgins to refuse to return to work on hours he himself had suggested. It was also unclear why a failure to formally agree to a review at the end of the 13 week PTMG would have remedied a substantial disadvantage as identified earlier and how far it would have prevented it.
Whilst in this particular case the EAT decided that the matter needed to be heard afresh so that evidence could be heard in order to make decisions on all these issues, they did make clear that it was not self evident that an employer had to provide some guarantee of a future review on a plan that adhered to the recommendations of the employee’s doctor and complied with the employee’s own view of what he was capable of. Clearly, if at the end of the PTMG Mr Higgins was still unable to fulfil his contractual hours such that he was still at a substantial disadvantage, the duty to make reasonable adjustments would still apply and could be judged on the circumstances at that time.
The issue of reasonable adjustments is one that employers often worry about; it must be borne in mind that whilst disabled employees are given these additional rights, there still needs to be a systematic approach when considering each request for reasonable adjustments to see if they actually assist in remedying disadvantages in the workplace, since not all such requests or claims will meet the necessary criteria. Where the issues are not so clear cut, it is often prudent to seek advice, from occupational health advisors and others, as to the benefits of the proposals made by an employee and the effect of any it would have on alleviating disadvantages in the workplace.
Safia Tharoo, Barrister, 42 Bedford Row, London