Under the Disability Discrimination Act 1995 (now superseded by the Equality Act 2010), when deciding whether or not an employer took sufficient steps to comply with its duty to make reasonable adjustments to remove a disadvantage faced by a disabled employee, the Employment Tribunal (ET) must consider whether or not a particular step would have prevented the disadvantage.
In Leeds Teaching Hospital NHS Trust v Foster, the Employment Appeal Tribunal (EAT) upheld the ET’s decision that the employer had failed to make an adjustment that had a real prospect of enabling a disabled employee to return to work. In doing so, the EAT confirmed that it would only have been necessary for the adjustment to have had ‘a prospect’ of achieving that aim to justify the need to make it. It does not have to be a ‘good prospect’.
Mr Foster worked for Leeds Teaching Hospital NHS Trust in its Security Department. In October 2006, he went on sick leave owing to stress and raised a grievance alleging bullying and harassment by his line manager. His grievance was not determined until September 2007, when he was told that it had been dismissed. In the meantime, Mr Foster was seen by a doctor in Occupational Health, who confirmed that his stress was caused by problems at work and he would not be able to return to work until these had been resolved. Even so, throughout his absence from work, the Trust regarded Mr Foster’s ill health and his grievance as being entirely separate issues.
In early 2008, the Trust informed Mr Foster that redeployment outside the Security Department was not an option and suggested mediation between him and his line manager. The doctor advised that as long as Mr Foster believed the problem still existed, his return to work would not be possible until he was redeployed outside the Security Department. It was not until June, however, that a decision was taken to put Mr Foster on the redeployment register for three months to see if suitable alternative work was available. No other steps were taken to address his concerns as the Trust believed it was up to him to raise a further grievance if he wished. By this time, he had no belief that doing so would achieve anything.
In the event, a suitable vacancy did arise, but Mr Foster was unable to pursue it owing to his health. By this time, his line manager had left the Trust’s employment. Mr Foster confirmed that he felt well enough to return to work in the Security Department but wished to discuss his ongoing concerns. The Trust’s position was that if he wished to do so, he must raise a fresh grievance. By this time, Mr Foster had lost all confidence in the Trust. He was not able to return to work as planned and his employment was terminated.
The EAT upheld the ET’s finding of disability discrimination and unfair dismissal. The Trust had not complied with its duty to make reasonable adjustments and had acted unreasonably in failing to acknowledge the link between Mr Foster’s absence and the reasons for it. The Trust had a large workforce and the ET was entitled to find that had Mr Foster been put on the redeployment register sooner, there was a real prospect of him being able to return to work with appropriate support. Furthermore, had this happened, there was a good chance that the outcome would have been different.