Three recent rulings by the Employment Appeal Tribunal (EAT) shed light on an employer's duty to make reasonable adjustments.

In Salford NHS Primary Care Trust v Smith the EAT held that it is not a reasonable adjustment to give a disabled employee on sick leave a career sabbatical, nor to provide rehabilitative non-productive work for the employee to do for a period. Reasonable adjustments for a disabled employee on sick leave are primarily concerned with helping them to return to work. Steps such as consultations and trial periods are useful in ascertaining what reasonable adjustments can be made, but are not themselves adjustments which employers are obliged to make.

In Leeds Teaching Hospital v Foster the EAT held that if there is an adjustment which has a prospect of removing a disabled employee's disadvantage, it may amount to a reasonable adjustment that an employer should make. The fact that there is not a "good or real" prospect of success does not automatically make the adjustment unreasonable. This ruling slightly lowers the threshold for showing that an adjustment would be reasonable.

In Cordell v The Foreign and Commonwealth Office the EAT held that whether an adjustment is reasonable in light of its cost is a matter of judgement for the tribunal - which makes their rulings difficult to appeal. A tribunal can take into account a variety of factors, such as:

  • the size of any budget dedicated to reasonable adjustments (although this cannot be conclusive);
  • the amount that the employer has spent in comparable situations (in this case, an education allowance for each employee's child to assist relocation abroad);
  • the amount that other employers are prepared to spend; and
  • any collective agreement or other indication of the level of expenditure regarded as appropriate by representative organisations.

For further information on this topic please contact Andrew Brown at Herbert Smith LLP by telephone (+44 20 7374 8000), fax (+44 20 7374 0888) or email (andrew.brown@herbertsmith.com).

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