Author: Liz Bradley
Employers should be aware that changing or removing adjustments for a disabled employee could amount to a failure to make reasonable adjustments, even if they are replaced with other adjustments.
In Northumberland Tyne & Wear NHS Foundation Trust v D Ward (2019), the claimant had chronic fatigue syndrome. As a result of this disability, she was more likely to have higher absences than other employees. The trust amended the application of its sickness and absence policy in her case so that the threshold for triggering disciplinary action was increased to five periods of absence in 12 months, rather than three. During the four years that this extension was in place, the claimant avoided triggering disciplinary action. However, when the extension was removed and the standard policy applied to her instead, the claimant’s absences resulted in disciplinary action and ultimately dismissal.
When the Trust removed the extension, it did introduce other adjustments to the claimant’s workload and hours instead. However, the EAT found that the Tribunal had been entitled to conclude that there had been a failure to make reasonable adjustments because the new measures had not ameliorated the disadvantage faced by the claimant, or only did so to a limited extent. The Trust had failed in its duty by not providing the reasonable adjustment that was actually capable of ameliorating the disadvantage – the extension to the policy
This leaves employers in a challenging position. An adjustment that is considered reasonable at a particular point in time cannot automatically be treated as reasonable indefinitely, but this case shows that any changes will need to be well thought through – particularly where the adjustment appears to be working well from the perspective of the disabled employee. If an employer needs to make alternative arrangements, it should be on the basis that the previous adjustments have genuinely ceased to be reasonable and any new adjustments are just as effective.
