| The recent case of McHugh v NCH Scotland [2006], | | | | reasonable adjustments in the form of increased |
| concerned an allegation of disability discrimination. The | | | | physical support. The employer appealed against the |
| employee commenced employment as a project | | | | decision to the Employment Appeals Tribunal ("EAT"). |
| manager for the employer, a children's charity, in | | | | The employer submitted that the tribunal had erred in |
| 1997. In 2001, she was certified unfit to work on the | | | | failing to consider justification for the breach of duty |
| grounds of depression. | | | | pursuant to s.5(4) of the Disability Discrimination Act |
| In August, the employee's GP told the employer's | | | | 1995 ("the Act"). It argued that the tribunal ought to |
| occupational health adviser that the employee | | | | have addressed whether the employer had failed to |
| continued to suffer from moderately to severe | | | | make reasonable adjustments, rather than whether it |
| depression but would be able to return to work | | | | had failed to consider making reasonable adjustments. |
| when her mood had sufficiently recovered. In | | | | Furthermore, it was submitted that the duty to |
| December, the employer met with the employee in | | | | make reasonable adjustments was not triggered |
| order to discuss the possibility of a staged return to | | | | during the time when the employee was off work as |
| work. The employee enquired as to whether the | | | | there was no indication of a return date. |
| staged return to work would be possible to occur in | | | | The appeal was allowed for the following reasons: |
| the training section of the organisation. Unfortunately | | | | - it was common ground that there had been no |
| she was informed that there were no vacancies. | | | | finding on justification. It was held that was a matter |
| On the 1st of February 2002, the employee | | | | of substance, as the employer had contended that |
| requested early retirement on the grounds of ill | | | | the failure by the employee to consider (in |
| health. The employer told the employee that her | | | | conjunction with the employer) any further steps |
| application had not been submitted for approval as it | | | | after she had insisted that all communication was to |
| had not been supported by the occupational health | | | | go through her solicitor constituted justification for |
| adviser, who on the basis of medical information | | | | any failure to comply with the duty. That was |
| from her GP, did not consider her to be permanently | | | | deemed both material to the circumstances of the |
| incapacitated as a result of her illness. | | | | case and substantial pursuant to s.5(4) of the Act. It |
| At a meeting in May, the employee and employer | | | | had been an error by the tribunal to make no finding |
| agreed to seek direction from a specialist medical | | | | on justification, which was an employer's defence to |
| report. The employer stated that it would welcome | | | | a finding of breach of duty. The finding of unlawful |
| the employee back to work through a managed | | | | discrimination therefore had to be set aside. |
| programme, which would require an indication of a | | | | - the duty was to make reasonable adjustments. The |
| return date as outlined by the results of a | | | | tribunal had recognised that the principal issue in the |
| consultation with her GP. | | | | instant case was the failure of the employer 'to |
| In June, the employer was advised that the | | | | consider' reasonable adjustments. It found that it had |
| employee had instructed a solicitor and that it should | | | | so failed, and there that the judgment was |
| not communicate directly with her. | | | | inconsistent with previous authority and so could not |
| The specialist report indicated that it was possible | | | | stand. |
| that the employee would return to health over a | | | | § in this case, it was unreasonable for the |
| period of six to twelve months, but that it was | | | | employer to pursue the possibilities which the tribunal |
| unlikely she would be able to return to work in her | | | | had noted until there was some sign that the |
| previous capacity and that early retirement should be | | | | employee would be returning to work. Had the |
| considered. | | | | relevant previous authority been cited to the tribunal, |
| Based on that report, the occupational health adviser | | | | it would have been bound to find that the duty to |
| indicated to the employer that he did not consider | | | | make reasonable adjustments had not been triggered |
| the employee permanently incapacitated, as there | | | | by the time the employee had resigned. If the only |
| was a possibility that her health could improve. In | | | | errors found had been the failure to consider |
| April 2003, at the request of the employee, the | | | | justification and the misdirection as to the duty to |
| employer submitted a further application for early | | | | make adjustments, it would have been appropriate |
| retirement to the occupational health adviser. The | | | | for the EAT to have sent the case back to the |
| occupational health adviser refused to support the | | | | tribunal for reconsideration. However, none of those |
| application. | | | | points, even if reconsidered, could overcome the |
| A further independent medical assessment was then | | | | fatal effect of the judgment on the point relating to |
| carried out. However, it also refused to support an | | | | the triggering of the duty to make reasonable |
| application for early retirement. In May 2004, the | | | | adjustments. The degree of error involved made it |
| employee resigned with notice. | | | | inappropriate for the instant case to be sent back to |
| Subsequently the occupational health adviser stated | | | | the tribunal. Therefore the judgment would be set |
| that he was unable to certify that the employee | | | | aside and the appeal would be allowed. |
| fulfilled the conditions for early retirement and that it | | | | If you require further information please contact us |
| would not be unreasonable to terminate her | | | | at or Visit |
| employment on the ground of capability. As a result, | | | | © RT COOPERS, 2007. This Briefing Note does |
| the employee brought proceedings before the | | | | not provide a comprehensive or complete statement |
| employment tribunal claiming unlawful disability | | | | of the law relating to the issues discussed nor does it |
| discrimination. | | | | constitute legal advice. It is intended only to highlight |
| The tribunal allowed the claim on the grounds that | | | | general issues. Specialist legal advice should always be |
| the employer had failed to consider making | | | | sought in relation to particular circumstances. |