The EAT has held, in the case of Leeds Teaching Hospital NHS Trust v Foster, that a proposed adjustment need not have a "good prospect" of removing a disadvantage suffered by a disabled employee in order for it to be a reasonable adjustment. Instead, an adjustment might be reasonable, and therefore required, where there is simply "a prospect" that it will succeed.
The employee, Mr Foster, went on sick leave in October 2006 owing to stress, following a breakdown in the relationship with his line manager. The Tribunal found that, in January 2008, Mr Foster's trade union representative thought that the Trust had agreed to put him on the redeployment register, in order that he could be transferred to another department, away from his line manager. Occupational Health confirmed he should be able to return to work on that basis. However, in fact, the Trust said he could only return to a different role within his department, rather than outwith it. They viewed his sickness absence and his issues with his line manager as completely separate matters. However, ultimately, by June 2008, when Mr Foster was still absent, the Trust then agreed to place him on the redeployment register. Whilst one redeployment opportunity arose, he was too ill to take it. Ultimately, after absence of over two years, he was dismissed on health grounds in February 2009.
The question before the Tribunal was whether the Trust had breached its duty to make reasonable adjustments by failing to put Mr Foster on the redeployment register in January 2008. It held that they had, as, had they done so, there would have been a "good" or "real" prospect of him returning to work. The EAT subsequently upheld this decision on appeal, but noted that there had been no need for the Tribunal to go as far as finding that there would have been a "good or real prospect". Instead, a finding that there simply would have been a "prospect" of the proposed adjustment working would have been sufficient.
Impact for employers
- It is well established that in order for a proposed adjustment to be a "reasonable adjustment", it must actually work to remove the disadvantage suffered by the disabled person. However, where it is not known whether or not an adjustment will succeed, this case clarifies that in order for it to be a reasonable adjustment, it need only have a "prospect" of success, which is clearly not a particularly high test to satisfy.
- The EAT therefore seems to have set the bar rather low in terms of the prospects of success that any adjustment must have in order to render it "reasonable". The debate over whether there must be a "real prospect" of the adjustment succeeding or merely "a prospect" is perhaps a semantic one, but the fact that the EAT took the view that it did, indicates that employers should err on the side of caution in deciding whether it is worth considering any adjustment being proposed by the employee.