Following his long-term sickness absence, Mr Higgins’ employer suggested a phased return, gradually increasing to his contracted hours over 13 weeks. Mr Higgins refused to return unless his employer promised in advance to extend the phased return beyond 13 weeks. His employer dismissed him. Mr Higgins raised a claim, arguing that the refusal to agree the extension was disability discrimination, by way of a failure to make reasonable adjustments.
Where a provision, criterion or practice puts a disabled person at a substantial disadvantage, their employer must take reasonable steps to avoid the disadvantage. In this case, the Employment Appeal Tribunal advised that if an employer grants the reduced hours which an employee says he is capable of working, it is not generally also necessary for the employer to give an explicit guarantee that the phased return will be reviewed in the future. That said, however, phased returns should be kept under review. In particular, at the end of the phased return period, employers should consider whether the circumstances at that point in time mean that the phased return should be extended in order to comply with the duty to make reasonable adjustments.
Sarah Donaldson
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