In Salford NHS Primary Care Trust v Smith the EAT decided that it was not a reasonable adjustment for the purposes of the Disability Discrimination Act (DDA, now enshrined in the Equality Act) to propose a career break to an employee who was on long term sick leave.
Mrs Smith worked as an occupational therapist for the Trust until she fell ill with chronic fatigue syndrome and was signed off on long term sick leave. A phased return was suggested by the Trust’s occupational health therapist (OH); alternatively a career break was suggested to allow her breathing space. Mrs Smith declined offers of various posts, did not attend 2 scheduled meetings and did not accept the Trust’s offer of IT training so that she could undertake a nonclient facing IT role. Finally the Trust wrote stating that it might have to ‘consider employment options including termination’. Mrs Smith responded by tendering her resignation, which was accepted. She then brought a claim for breach of the DDA, stating that the Trust had failed to make reasonable adjustments to facilitate a return to work and that she had been constructively dismissed.
The EAT, overturning the lower court’s decision, held that reasonable adjustments are limited to those that prevent the provision, criterion or practice which place the disabled person at a disadvantage. They are primarily concerned with enabling the disabled employee to remain in or return to work with the employer. Matters such as consultations and trials, exploratory investigations and the like do not qualify as adjustments. The tribunal was wrong to have suggested that ‘rehabilitation duties’ would have been a reasonable adjustment. Nor, however, was the OH’s suggestion of a career break a reasonable adjustment. It would not have alleviated the disadvantage.
The EAT held that there had, however, been no constructive dismissal. The Trust’s letter to Mrs Smith had been ‘wholly innocuous’ and ‘standard and reasonable’.
The key point in this case is the consideration of what qualifies as a reasonable adjustment. In line with the reasoning in earlier cases, the EAT held that consultations, trial periods and similar do not qualify as adjustments because reasonable adjustments should focus on getting the employee back to work.