Originally published in People Management on 10 October 2011.

Salford NHS Primary Care Trust v Smith UKEAT/0507/10

Smith was an occupational therapist on long-term sick leave with chronic fatigue syndrome. Her job ceased to exist whilst she was off sick. The employer identified and offered a number of alternative roles, all of which Smith rejected. The employer offered administrative work but Smith rejected this because she had no IT skills. The employer offered IT training but Smith didn't respond to this offer. Smith never disagreed with any of the employer's letters to her, in which they set out their proposals. She failed to attend two meetings and the employer then wrote to her scheduling a third meeting, saying (not for the first time) that if she failed to attend, other options would have to be considered, including termination. Smith resigned, claiming constructive unfair dismissal and a failure to make reasonable adjustments contrary to the Disability Discrimination Act 1995 (DDA).

The ET at first instance upheld the claim. It said that the employer should have produced something for Smith to do, even if only "... by way of rehabilitation, not necessarily productive", and should have proposed "light duties" so that her GP could sign her back to work.

The EAT held that this was wrong. What the ET said the employer should have done was not a reasonable adjustment for DDA (now Equality Act 2010) purposes. The central point was that a reasonable adjustment would only come within the DDA if it would alleviate a particular disadvantage caused to the disabled person by a provision, criterion or practice (PCP) applied by the employer. The PCP here was the expectation that Smith would perform her full role within her contracted hours. The adjustment which the ET had ruled that the employer should have made would not have alleviated the disadvantage Smith was under as a result of the PCP – she would have remained unfit to return to work.

Smith had also said that the employer should alternatively have offered her a career break. The EAT confirmed the ET's ruling that a career break was not a reasonable adjustment that the employer could have been required to offer and that it would not have prevented the disadvantage caused to Smith by the PCP. Smith was already on longterm sick leave and a "change of label" designating her absence as a career break would not have made any difference to her ability to return to work. Indeed, she would have been worse off, as she would have lost her sick pay.

The right approach to deciding on adjustments

Under the DDA, and now the Equality Act 2010, where a disabled employee is placed at a substantial disadvantage by a PCP or physical feature, the employer is under a duty to take reasonable steps to alleviate that disadvantage. There is no one right approach to deciding what steps should be taken but in Smith's case, the lay members of the EAT said that the employer had done exactly what it should. In particular, the employer had:

  • explored various alternative roles.
  • offered retraining to suit the employee for alternative roles.
  • written to the employee detailing its proposals and offering her the opportunity to comment.
  • encouraged her to attend the work place to keep in touch with colleagues.
  • invited her to meetings to discuss her situation face to face.
  • ascertained that there was no job which the employee was capable of doing at the time.
  • informed the employee on a number of occasions that it might be necessary to consider termination of her employment.

This case is therefore some assurance to employers who take a sensible approach to rehabilitation for employees with a disability. They should not end up liable for discrimination when in fact there are no adjustments that could reasonably be made to alleviate the employee's disadvantage.

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