Posted by Gemma Ospedale, Partner
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Offer of reduced workings hours not a breach of reasonable adjustments duty
In Secretary of State for Work and Pensions (Job Centre Plus) v Higgins, the EAT has overturned a Tribunal decision that the employer had breached the duty to make reasonable adjustments in agreeing the employee’s reduced working hours without specifically stating these would be reviewed and extended if necessary.
The Claimant was absent for over a year due to a heart condition. When he was signed fit to return via a phased return and altered hours, the employer told him that a plan had been set up to agree his return to work over 13 weeks. It sent him a letter to the effect that his hours should be gradually built up to normal hours by the end of the 13 week period but that if he was not able to meet this target he should discuss this with his manager. When the Claimant said that he was unwilling to return to work unless the plan was extended, he was dismissed – and promptly brought a claim for failure to make reasonable adjustments, which the Tribunal upheld. It considered that specification of a return to work plan over 13 weeks subject to reviews was reasonable but that explicitly rejecting a possibility of a review before returning to normal working hours was not reasonable. As the employer did not change this before the Claimant was dismissed, the Tribunal considered that the duty to make reasonable adjustments had been breached.
The EAT, however, held that the Tribunal had failed to identify the relevant provision, criterion or practice that placed the Claimant at a substantial disadvantage compared to non-disabled people. The Tribunal considered the PCP to be the requirement to work when this should instead have been the contractual hours required. It appeared the ET considered that, just because the letter did not contain provision for a review, the Claimant was reasonable in refusing to even start the phased return on hours which he was fit to work, and that the employer should have expressly stated that a review would be carried out and a possible extension of the phased hours would be agreed if needed.
The EAT noted that employers will often have fit notes which require a phased return over a set period and stated that if the employer agrees to the reduced hours it saw no reason why the employer should give some explicit guarantee of any future review. The situation should be judged at the end of the review period in the context of what the employee was capable of undertaking at the time.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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