Failure to consult over alternatives to dismissal does not amount to a failure to ‘make reasonable adjustments’ under the Disability Discrimination Act (DDA) (but it may make a dismissal unfair).

In Scottish & Southern Energy v Mackay the EAT has yet again reminded employers that, when dismissing an employee who has been on long-term sick leave, their duties under the DDA are different from those under the Employment Rights Act.

The employee in this case was a repair engineer who worked on his own, visiting customers’ premises. He began to suffer from headaches and migraines and was then certified as unfit to work because of depression. A medical report prepared for the employer stated that there was very little prospect in the short or even medium to long term of him returning to work in his former capacity. The only other available work would have been in a power plant but there were currently no vacancies there. He was dismissed for incapacity.

He claimed under the DDA that the employer had failed to make ‘reasonable adjustments’ for his incapacity in that, at the time of his dismissal, no-one had discussed with him the possibility of his being redeployed in the power plant where a vacancy might have arisen in the near future. He also claimed unfair dismissal.

At the Employment Tribunal he succeeded on both claims.

The EAT has now allowed the employer’s appeal on the DDA claim. It has confirmed that, in a dismissal situation, a failure to consult on alternatives to dismissal will not amount to a failure to make ‘reasonable adjustments’ under the DDA but it may make an otherwise fair dismissal unfair.