As you know, employers are under a duty to make reasonable adjustments to prevent employees from being placed at a substantial disadvantage by any policies, requirements or practices. However, it is not always clear how far you must go. In a recent EAT decision it was suggested that if there was a "real prospect" that a proposed adjustment would remove the disadvantage then it would be reasonable to expect the employer to have made it. To the legal brain this suggested that if an adjustment could not be said to have a "real prospect" of relieving the disadvantage, then it would not need to be made. The case of Leeds Teaching Hospital NHS Trust v Foster determined whether this was correct.
Mr Foster was a senior security inspector at the NHS Trust. Following a breakdown in the relationship between him and his line manager, he went on long term sick leave. He was eventually dismissed on health grounds two and a half years later. This prompted Foster to bring a claim for disability discrimination.
The medical evidence stated that his absence was due to problems at work and he would not be able to return until these were resolved. Foster raised this in his grievance but it was rejected. At one point it looked like an agreement had been reached to redeploy Foster to another department where he would not be working with his line manager. Foster's doctor had confirmed that he would be able to return to work on this basis. However, the Trust then clarified that they were suggesting that Foster return to a different role within the Security Department rather than outside it. They appeared to be of the view that if Foster was fit to return to a job outside the department he was fit to return to a job inside it.
About six months later a decision was finally made to put Foster on the Trust redeployment register to see if any work outside the Security Department became available. An opportunity did arise but by that point Foster was too ill to take it. Finally, after several more months had passed, a report was obtained stating that Foster would not be able to return to work.
The Tribunal and the EAT found that if the Trust had put Foster on the redeployment register six months earlier than it actually did, then there would have been a "real prospect" or a "good prospect" of his returning to work with the appropriate support. The Trust had therefore breached their duty to make reasonable adjustments. However, importantly, the EAT went on to find that there was in fact no need for the Tribunal to go as far as stating that there would have been a "good or real prospect" of his being redeployed. They clarified that the earlier decision which had suggested this test had been misinterpreted and that it was enough for there to be just "a prospect" of the proposed adjustment removing the disadvantage.
Of course, if an adjustment is not going to make a jot of difference, then you are not going to be in breach of the legislation by not making it. However, if there is a 'prospect' that it will assist the employee then you have to look at the circumstances and ask yourself whether making the adjustment is reasonable. For the most part, once you undertake this exercise you should be able to come to a sensible decision as to whether an adjustment should be made, but if you have any doubts you can always ask occupational health specialists and/or us!