An adjustment doesn’t need a guaranteed chance of working to count as reasonable.
“EATStands for Employment Appeal Tribunal. It hears appeals from employment tribunal decisions on points of law, not on the facts. It is not a way of simply asking for a second opinion on the outcome.: an adjustment needs only some chance of success, not a guarantee; both claims succeeded.”
An adjustment does not need a guaranteed, or even a strong, chance of removing your disadvantage to count as reasonable under the law. A lesser prospect can be enough.
- If your employer says an adjustment "might not work" as a reason not to try it, that is not the end of the argument, the legal bar is lower than certainty.
- In a larger organisation, the size of the workforce and how often vacancies arise are themselves evidence that redeployment had a genuine chance of success.
- If your employer treats your sickness absence and the workplace problem behind it as entirely separate issues, get advice, that separation can itself contribute to an unfair dismissal.
The situation
A senior security inspector went off sick with stress after his relationship with his line manager broke down. He raised a grievanceA formal complaint raised by an employee against their employer, triggering a legal obligation to investigate and respond. of bullyingRepeated, unreasonable behaviour towards you at work that undermines you or damages your dignity, such as persistent criticism, exclusion, humiliation, or intimidation. Bullying on its own is not auto... and harassmentUnwanted behaviour related to a protected characteristic, such as your sex, race, disability, age or religion, that violates your dignity or creates an intimidating, hostile or humiliating environment.... It wasn't upheld. Occupational HealthAn independent medical service that employers use to assess how a health condition is affecting your ability to work. A referral to occupational health is not a step toward dismissal, but the report p... repeatedly said his return to work depended on resolving the underlying workplace problems, but his employer treated the sickness absence and the grievance as two separate matters and never tackled the root cause. He was promised redeploymentMoving you into a different role with your employer instead of dismissing you, usually considered when your original job is no longer possible because of ill health or disability. It should be offered... to a role away from his old department. That promise fell through, and he was eventually dismissed after nearly two and a half years off sick.
What the tribunal found
The tribunal found the employer should have put him on its redeployment register several months earlier than it did, at a point when he had confirmed he was ready to return and Occupational Health saw no medical reason why not. On appeal, the employer argued this couldn't be a reasonable adjustment because there was no proof it would definitely, or even probably, have led to a suitable job. The tribunal disagreed, and the Employment Appeal Tribunal agreed with the tribunal: an adjustment does not need a strong or guaranteed chance of working to count as reasonable. A lesser prospect is enough. His disability discrimination and unfair dismissalA legal claim you can bring if your employer dismissed you without a fair reason or without following a fair process. You normally need two years of continuous employment to qualify, though some dismi... claims both succeeded.
Leeds Teaching Hospital NHS Trust v Foster. UKEAT/0552/10/JOJ. Employment Appeal Tribunal. 14 June 2011.