Salford NHS Primary Care Trust v Smith UKEAT/0005/11/JOJ

C was a physiotherapist who suffered from chronic fatigue syndrome. She went on long term sick leave and was
unable to return to her post or to perform any productive work. She claimed that R had failed to make
adjustments to facilitate her return to work. The ET upheld her claim and R appealed.

Facts

C went on sick leave on 29.03.07. She was certificated with a chest infection but did not return to work because of
post viral fatigue syndrome and in fact she was never certified for work again in any capacity. R’s OH physician
advised that C was not fit for work but that R should do a number of things to prepare C for an eventual return to
work such as carrying out an stress risk assessment or an optional career break. OH expected that in the long
term C would make a good recovery. R explored with C other options for redeployment but C did not consider any
of the options to be suitable. Eventually R wrote to C stating that it would have to consider whether or not to
terminate her employment. When C received this letter she resigned and claimed that she had been unfairly
dismissed and discriminated against.

Held

The ET held that R had failed to make the reasonable adjustment of providing C with something to do by way of
rehabilitation such as 2 or 3 hours work a week. C argued that this would have allowed her doctor to confirm that
she was fit to work. The ET also held that this had led to C’s resignation and that she therefore had been
constructively unfairly dismissed. R appealed and argued that the adjustment referred to by the ET was not in law
a reasonable adjustment (relying upon Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664). The EAT upheld
the appeal. It considered that the PCP was the expectation that C would perform her full role within the
contracted hours and that C was placed at a substantial disadvantage by this as she was unable to work full time
as a result of her disability. The EAT held that “adjustments that do not have the effect of alleviating the disabled
person’s substantial disadvantage… as we have set it out above are not reasonable adjustments within the
meaning of the Act. Matters such as consultations and trials, exploratory investigations and the like do not
qualify.”  The proposed career break was not a reasonable adjustment because it did nothing to alleviate the
substantial disadvantage. The EAT also rejected the notion that non-productive “light duties” was a reasonable
adjustment although its reasons for doing so are unclear. There is a suggestion that the light duties would not
have “mitigated” the effects of the PCP.

Comment

The EAT in this case appeared to require the PCP to actually “prevent” the disadvantage. There is a lack of clarity
from the EAT over precisely how effective an adjustment must be before it is obligatory to make it (see the 2011
Q2 Newsletter). The effectiveness of an adjustment may be better dealt with when considering whether the
adjustment was reasonable rather than when considering whether the duty arises. For instance, in the above case
it is unclear why allowing C to work for 2 hours a week for as long as it took for her to recover would not have
done something to alleviate the disadvantage of not being able to work full time. The medical evidence indicated
that she would eventually recover. Allowing her to work a few hours would have kept her in contact with the
workforce, would have given her some income and would have allowed her to slip more easily back into full time
work once she had recovered. The real question was whether or not it was reasonable for the employer to have
been required to provide her with this sort of work in these circumstances.

A copy of the full transcript can be downloaded by clicking here or by following this link: http://www.bailii.org/uk/cases/UKEAT/2011/0507_10_2608.html.