Thanks to Joanna Cowie of SA Law for preparing this case summary
Thanks also to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett.
Did an employer breach its duty to make reasonable adjustments by only offering a disabled employee reduced hours for a fixed period?
No, says the Employment Appeal Tribunal in Secretary of State for Work and Pensions v Higgins.
H was a long serving employee at the JobCentre Plus (JP) in Liverpool. Following a long sickness absence, H presented a GP “Fit Note”, which recommended a phased return to work on altered hours for 3 months. H suggested a phased return over a period of up to 26 weeks, but JP proposed a Part-time Medical Grounds (“PTMG”) plan for H to build up to his normal hours over 13 weeks. H did not accept this plan, and refused to return to work unless JP agreed to extend the PTMG. His request to extend the plan was refused and H was dismissed. He presented a claim on the grounds that JP had failed to make reasonable adjustments under Section 20(3) Equalities Act 2010.
The employment tribunal had held that by failing to consider an extension to the PTMG plan beyond 13 weeks, JP had breached its duty to make reasonable adjustments. JP appealed.
Allowing the appeal, the EAT found that the tribunal had incorrectly identified that the provision criteria or practice placing H at a substantial disadvantage was the requirement for him to work, whereas it should have been the requirement for him to work his contractual hours. Noting that employers are often presented with Fit Notes which last a certain duration, the EAT did not consider that it is always necessary for the employer to give an explicit guarantee to extend this period. If at the end of the agreed period, an employee continues to suffer a substantial disadvantage, then although the duty to make reasonable adjustments will still be applicable, it will be judged on the circumstances relevant at that particular time.
Seminar: Complex Constructive Dismissals – Blackmail in the Workforce
What should an employer do when faced with a thinly-disguised campaign to use employment law to blackmail an unjustified pay-out?
In a recent tribunal claim involving an employee in a sensitive accounting position, the employee was found to have lied on his CV, hidden shady ‘business deals’, made ‘protected disclosures’ in bad faith, accessed privileged solicitor correspondence, threatened to divulge details of a major client to the press all in pursuit of a stated goal of £250,000 (8 x his gross salary) as well as making over 64 grievances including very serious allegations. The tribunal process was repeatedly thwarted by unsubstantiated medical assertions.
Many employers have difficulty withstanding challenges at this level. However, with an understanding of the law and some practical steps, it is possible to prevail. In this case, the employee was ordered to meet the Respondent’s counterclaim and we are now applying for costs.
– Vetting policies & procedures
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– Dismantling bogus ‘whistle-blowing’ allegations
– Thursday 14th November, 2pm-4.30pm
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– Cost £50+VAT (includes detailed notes & checklist for managers)
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Gordon Turner has 20 years’ experience as an employment lawyer & advocate, with a particular interest and established record in preventing misuse of the tribunal system.