Duty to make reasonable adjustments – reduced hours

The EAT has held that an employer did not breach its duty to make reasonable adjustments when it agreed to a disabled employee working reduced hours for 13 weeks without expressly stating that it would review the period of reduced working hours and extend it if necessary.

Mr Higgins (claimant) was employed as an administrative officer at the JobCentre Plus (JP) in Liverpool. JP is an executive agency for which the Secretary of State for Works and Pensions (respondent) is responsible. The claimant was a long serving employee, having commenced work in 1979. In June 2009, he began a long period of absence by reason of a heart condition. In August 2010, the claimant presented a GP ‘fit note’ which stated that he may benefit from a phased return to work on altered hours for three months. Following consultation, JP informed the claimant that a ‘Part-Time Attendance on Medical Grounds’ (PTAMG) plan had been set up for his return to work over 13 weeks. In the letter setting out this plan, JP stated that the claimant would be expected to build up gradually to his normal hours by the end of this period and that, if he did not feel able to meet this target, he should discuss a change in his contractual terms with his manager. The claimant told his manager he was unwilling to return to work unless the PTAMG plan was extended. The claimant was then dismissed. His appeal against dismissal failed. The claimant presented an ET1 claiming that JP had failed to make reasonable adjustments under section 20(3) of the Equality Act 2010.

The ET upheld the claim. It held that it would have been reasonable for JP to specify a return to work over a 13-week period, subject to reviews, but the offer appeared expressly to reject the possibility of reviewing the 13 weeks to allow a further period before returning to normal working hours was not reasonable. As JP did not adjust its offer before the claimant was dismissed, the ET considered that it followed that it had breached the duty to make reasonable adjustments. JP appealed.

The EAT (HHJ Richardson presiding) allowed the appeal against the ET’s finding that JP was under a duty to make an adjustment. The ET had failed to properly identify the relevant ‘provision, criterion or practice’ (PCP) that placed the claimant at a substantial disadvantage. It had referred to the PCP as being the requirement to work, when it should have been the requirement to work contractual hours. The ET had failed to address in its reasoning what substantial disadvantage to the claimant an extension of the 13 weeks would have been effective in preventing, or how far it would have prevented it.

The PTAMG plan allowed the claimant 13 weeks of working reduced hours on the basis of what he had suggested. The ET appeared to have thought that, merely because the letter contained no provision for review, it was reasonable for the claimant not to have started working the hours he said he was fit to do and that it was essential for JP to say, at the beginning of the 13-week period, that it would review and extend the period if necessary thereafter. However, it was not self-evident that this was a step that it was reasonable for the employer to have to take.

The EAT noted that employers will often be presented with ‘fit notes’ which last a certain length of time and which request consideration of reduced hours during that time. If the employer grants the reduced hours which the employee says he is capable of working, the EAT did not see why it will generally also be necessary for the employer to give some explicit guarantee of future review. If, at the end of the period, the employee continues to be under a substantial disadvantage, the duty to make an adjustment will still be applicable and can be judged in the circumstances at that time.

Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins UKEAT/0579/12

This seems a sensible outcome. The fit note the claimant had provided stated that he would be fit for work on a phased return with altered hours limited to three months and the respondent had accepted this. The case is a helpful reminder about the law of reasonable adjustments and the need to identify the substantial disadvantage which the adjustment was to avoid and the extent to which the adjustment would be effective to avoid the disadvantage.