The EAT has held in Tameside Hospital NHS Foundation Trust v Mr Mylott (UKEAT/0352/09; UKEAT/0399/10) that the Disability Discrimination Act 1995 (DDA) does not give rise to a duty on the employer of a disabled employee to take steps to facilitate an application for ill health retirement.
Under the DDA, employers are under a duty to make reasonable adjustments where a company provision, criterion or practice places a disabled person at a substantial disadvantage in comparison with persons who are not disabled. The DDA was repealed and replaced by the Equality Act 2010 on 1 October 2010, which contains similar provisions.
Mr Mylott was employed by the Tameside Hospital NHS Foundation Trust as a finance manager. In February 2006, he was signed off work with anxiety and stress. Mr Mylott was dismissed under the company's attendance management procedure in February 2007 on capability grounds. At the dismissal meeting, he was advised to take up the issue of ill-health retirement with the HR department should he so wish, but he did not pursue the option. He subsequently brought claims for unfair dismissal and disability discrimination.
The EAT held that offering ill-health retirement does not fall within the scope of "reasonable adjustments". Reasonable adjustments are steps which make it possible for the employee to remain in employment, and do not extend to, in effect, providing compensation for being unable to do so.