A recent Tribunal has found that employers may be required to take steps to avoid the dismissal of a disabled employee, such as permitting a phased return to work.
In 2008 the House of Lords severely restricted employees' ability to claim for disability-related discrimination where they are treated less favourably for a reason connected with disability, such as long-term absence
Such a claim is now defeated if the employer would have treated a non-disabled employee's absence in the same way. In that situation, the only option (until the Equality Bill is enacted) is to claim for failure to make reasonable adjustments to a provision, criterion or practice.
Until recently it was unclear whether the duty to make reasonable adjustments applied to the act of dismissal. But in dealing with the case of Fareham College v Walters the EAT has now ruled that it does.
The employer in this case had breached the duty by failing to permit a phased return. Although not argued in this case, in some circumstances the duty may also require an employer to adjust its absence management policy by waiting for a longer period than specified before taking a decision on dismissal.
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