Return to work needs careful management

Posted: 15th November 2013

EATIn a warning to employers of how difficult it can be to manage an employee’s return to work following a prolonged period of sick leave, the Employment Appeal Tribunal (EAT) has directed a re-hearing of a Jobcentre worker’s complaints that he was discriminated against and unfairly dismissed after developing a serious heart condition.

The part-time worker had gone on sick leave after he was diagnosed with the heart problem and chronic obstructive pulmonary disease. There was no dispute that, as a result of his condition, he was a disabled person for the purposes of the Disability Discrimination Act 1995 and the Equality Act 2010.

After some months away, the worker’s GP declared him fit for a phased return to work and negotiations ensued with his employer – the Department of Work and Pensions (DWP) – as to how that would be achieved. In line with its policy, the DWP proposed that he take on reduced hours with a view to gradually building up to his normal contractual hours over a 13-week period.

The worker, who had been instructed to avoid stress by his doctor, did not consider that that was a long enough period for him to adjust. He said that he would not be prepared to return to work unless the 13-week period was extended.  On the same day, he was dismissed on the basis that his continued employment ‘could not be supported’. The manager who made the decision had not met with the worker for some weeks, nor had she taken occupational health advice.

An employment tribunal upheld the worker’s discrimination complaint on the basis that he had been subjected to a disadvantage by reason of his disability and that there had been a failure to make reasonable adjustments to cater for his condition. His unfair dismissal claim was also successful.

However, in overturning the decision and directing a fresh hearing of the case, the EAT found that the tribunal had failed to accurately identify the nature and extent of any disadvantage suffered and whether it could have been alleviated or avoided by the making of reasonable adjustments.

The tribunal had also erred in law in treating its finding of disability discrimination as determinative of the unfair dismissal claim.  It ought in particular to have focused on whether an internal appeal process that had been pursued by the worker prior to his dismissal had rectified any previous procedural shortcomings.