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No, if the employee has failed to inform the employer of their intention to return to work or ability to return if adjustments are made, held the Employment Appeal Tribunal (EAT) in Doran v Department for Work and Pensions.
Miss Doran worked for the Department for Work and Pensions (DWP) as an administrative officer from May 2009. She began to feel unwell and went on sickness leave due to stress in January 2010. In February, Miss Doran attended a meeting with the DWP where she was offered administrative assistant duties and part-time hours for four weeks to support her return. She consulted her doctor but did not accept the offer.
By May 2010, Miss Doran had not returned to work, and in line with DWP's attendance policy, she was given notice of dismissal.
Miss Doran claimed that the DWP failed to make reasonable adjustments under s4A of the Disability Discrimination Act 1995 (DDA) (subsequently replaced by the Equality Act 2010 (EqA)), on the basis that a four week phased return to work was not reasonable.
The Employment Tribunal (ET) held that Miss Doran had a disability and was placed at a substantial disadvantage by DWP's attendance policy. However, it rejected Miss Doran's claim on the basis that DWP's duty to make reasonable adjustments had not been triggered because Miss Doran had failed to inform DWP that she was returning to work or give any sign that she would be able to return if adjustments were made.
Miss Doran appealed to the EAT, who upheld the ET's decision.
This case suggests that an employee must be in a position to return to work or have expressed an intention to their employer to resume some of their duties, for the duty to make reasonable adjustments in the form of a phased return to be triggered.
However, it should be remembered that it was decided under the DDA and not the law as it currently stands. The EqA would have provided Miss Doran with the right to bring a claim for 'discrimination arising from disability'. Therefore she could have claimed that her dismissal pursuant to DWP's absence policy amounted to unfavourable treatment because her absence arose as a consequence of her disability. To avoid liability for such a claim, the DWP would have needed to show that any unfavourable treatment was objectively justified (ie a proportionate means of achieving a legitimate aim).
As claims relating to dismissal for poor attendance are more likely to be framed in the context of discrimination arising from disability or indirect disability discrimination, rather than failure to make reasonable adjustments, employers should assess whether the trigger points in their attendance management policies are capable of objective justification, ie is the policy in pursuance of a legitimate aim?
And if so, is dismissal after a certain period of absence a proportionate means of achieving that aim? It is always worthwhile considering any dismissal due to long term absence on a case by case basis, to manage the risk of discrimination claims.