Doran v Department for Work and Pensions (Disability Discrimination)

Where a disabled employee is certified unfit for any work and gives no indication that they could return if adjustments were made, the duty to make reasonable adjustments under Disability Discrimination Act 1995 section 4A is not triggered. A proposed phased or alternative return cannot usefully be implemented in the absence of such an indication.

An employer’s procedural omission does not alter that conclusion unless there is evidence that compliance would probably have produced information showing that a return under adjustments was feasible.

The claimant, an administrative officer, was absent with stress-related illness. She was certified unfit for work and did not give the respondent a timescale for return. The respondent discussed a possible temporary alternative role with part-time, phased hours, but dismissed her when her continuing absence could no longer be supported.

The Employment Tribunal found the dismissal unfair, subject to a 75% Polkey reduction, but dismissed claims for direct disability discrimination and failure to make reasonable adjustments. It held that the reasonable-adjustments duty had not arisen. The claimant appealed only that conclusion, while seeking reconsideration of compensation if the appeal succeeded.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the duty to make reasonable adjustments had not arisen on the facts found.

2. The relevant part of NCH Scotland v McHugh was not necessary to that decision and was therefore not binding. It was nevertheless an EAT decision to which the Tribunal could give weight. Read with Home Office v Collins and London Underground v Vuoto, it supported the conclusion that adjustments were not required where the employee was not fit for any work and had not indicated that she could return if adjustments were made.

3. The claimant’s medical certificates stated that she was unfit for any work. She did not become fit until September 2010. The possible alternative administrative role and phased return had been left for discussion when she became fit. The Tribunal could therefore find that no workable adjustment had been identified before dismissal.

4. The respondent had failed to convene the case conference required by its procedure. That omission did not assist the claimant because there was no acceptable evidence that a conference, with input from her or her GP, would probably have shown that she could return under reasonable adjustments before the relevant period of absence expired.

5. The claimant could not raise, for the first time on appeal, an argument that a fair procedure required an adjustment to the respondent’s six-month absence threshold. The Tribunal had also addressed the evidence that dismissal may have prolonged her absence and allowed for the resulting 25% possibility when assessing compensation.

• Employment Appeal Tribunal: appeal dismissed: [2014] UKEAT 0017_14_1411.
• Employment Tribunal: held the claimant unfairly dismissed, reduced compensation by 75%, and dismissed the disability-discrimination claims. The reasonable-adjustments decision was appealed.