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Case law: Employer should not force disabled employees to undertake roles they are unable to carry out

An employer should not inadvertently force a disabled employee to take on or return to a role it knows they cannot undertake, and should make sure that it proactively helps the employee find alternative posts, following a recent ruling.

Legal Alert

This update was published in Legal Alert - November 2015

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A nurse was unable to carry out ward work because of her disability, so her employer relocated her to the Outpatients Department. Her role there ceased to be available and she was instructed to find another post or return to ward-based duties, or the employer would initiate its sickness management procedure - which could result in termination of her employment. She claimed indirect discrimination.

It is indirect discrimination if an employer operates a provision, criterion or practice (PCP) which puts people with a disability (including the employee who is complaining about it) at a substantial disadvantage compared with people who do not have that disability. In that case the employer must make 'reasonable adjustments' for disabled employees to remove the substantial disadvantage. Whether an adjustment is 'reasonable' depends on the circumstances.

However, your PCP will not be unlawful if it is a proportionate means of achieving a legitimate aim. The nurse alleged that the instruction given to her amounted to a PCP which required her to return to a post her employer knew she was unable to undertake.

The Employment Appeal Tribunal agreed, and found she had not been offered a real choice but had effectively been instructed to return to her post - or risk termination of her employment.

It also ruled that the employer had not made reasonable adjustments because it had failed to proactively look for an alternative post for the employee, leaving her to find her own.

Operative date

  • Now

Recommendations

  • An employer should ensure it does not require a disabled employee to take on or return to a role that it knows they cannot undertake, and that it proactively helps the employee find alternative posts.

Case ref: Wolfe v North Middlesex University Hospitals NHS Trust UKEAT/0065/14/MC

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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