The recent case of McHugh v NCH Scotland , concerned an allegation of disability discrimination. The employee commenced employment as a project manager for the employer, a children’s charity, in 1997. In 2001, she was certified unfit to work on the grounds of depression.
In August, the employee’s GP told the employer’s occupational health adviser that the employee continued to suffer from moderately to severe depression but would be able to return to work when her mood had sufficiently recovered. In December, the employer met with the employee in order to discuss the possibility of a staged return to work. The employee enquired as to whether the staged return to work would be possible to occur in the training section of the organisation. Unfortunately she was informed that there were no vacancies.
On the 1st of February 2002, the employee requested early retirement on the grounds of ill health. The employer told the employee that her application had not been submitted for approval as it had not been supported by the occupational health adviser, who on the basis of medical information from her GP, did not consider her to be permanently incapacitated as a result of her illness.
At a meeting in May, the employee and employer agreed to seek direction from a specialist medical report. The employer stated that it would welcome the employee back to work through a managed programme, which would require an indication of a return date as outlined by the results of a consultation with her GP.
In June, the employer was advised that the employee had instructed a solicitor and that it should not communicate directly with her.
The specialist report indicated that it was possible that the employee would return to health over a period of six to twelve months, but that it was unlikely she would be able to return to work in her previous capacity and that early retirement should be considered.
Based on that report, the occupational health adviser indicated to the employer that he did not consider the employee permanently incapacitated, as there was a possibility that her health could improve. In April 2003, at the request of the employee, the employer submitted a further application for early retirement to the occupational health adviser. The occupational health adviser refused to support the application.
A further independent medical assessment was then carried out. However, it also refused to support an application for early retirement. In May 2004, the employee resigned with notice.
Subsequently the occupational health adviser stated that he was unable to certify that the employee fulfilled the conditions for early retirement and that it would not be unreasonable to terminate her employment on the ground of capability. As a result, the employee brought proceedings before the employment tribunal claiming unlawful disability discrimination.
The tribunal allowed the claim on the grounds that the employer had failed to consider making reasonable adjustments in the form of increased physical support. The employer appealed against the decision to the Employment Appeals Tribunal (“EAT”). The employer submitted that the tribunal had erred in failing to consider justification for the breach of duty pursuant to s.5(4) of the Disability Discrimination Act 1995 (“the Act”). It argued that the tribunal ought to have addressed whether the employer had failed to make reasonable adjustments, rather than whether it had failed to consider making reasonable adjustments.
Furthermore, it was submitted that the duty to make reasonable adjustments was not triggered during the time when the employee was off work as there was no indication of a return date.
The appeal was allowed for the following reasons:
– it was common ground that there had been no finding on justification. It was held that was a matter of substance, as the employer had contended that the failure by the employee to consider (in conjunction with the employer) any further steps after she had insisted that all communication was to go through her solicitor constituted justification for any failure to comply with the duty. That was deemed both material to the circumstances of the case and substantial pursuant to s.5(4) of the Act. It had been an error by the tribunal to make no finding on justification, which was an employer’s defence to a finding of breach of duty. The finding of unlawful discrimination therefore had to be set aside.
– the duty was to make reasonable adjustments. The tribunal had recognised that the principal issue in the instant case was the failure of the employer ‘to consider’ reasonable adjustments. It found that it had so failed, and there that the judgment was inconsistent with previous authority and so could not stand.
§ in this case, it was unreasonable for the employer to pursue the possibilities which the tribunal had noted until there was some sign that the employee would be returning to work. Had the relevant previous authority been cited to the tribunal, it would have been bound to find that the duty to make reasonable adjustments had not been triggered by the time the employee had resigned. If the only errors found had been the failure to consider justification and the misdirection as to the duty to make adjustments, it would have been appropriate for the EAT to have sent the case back to the tribunal for reconsideration. However, none of those points, even if reconsidered, could overcome the fatal effect of the judgment on the point relating to the triggering of the duty to make reasonable adjustments. The degree of error involved made it inappropriate for the instant case to be sent back to the tribunal. Therefore the judgment would be set aside and the appeal would be allowed.