In this case, the EAT held that an employer had not failed to make reasonable adjustments where the adjustments being proposed were not feasible due to operational and safety concerns. It also found that the employee's dismissal was neither unfair nor discriminatory as it was a justifiable outcome of her long-term sickness absence and its operational impacts on the employer.
Facts
Mrs Mahoro was employed by the Northern Care Alliance (NCA) as a biomedical scientist. She was promoted to a band 6 team leader role in June 2014.
Following a scheduled operation for a long-term spinal condition Mrs Mahoro returned to work on a phased basis in November 2016. In December 2016, she requested permanent reduced hours for medical reasons. An occupational health (OH) report supported the request for reduced hours, and recommended provision of a special chair.
NCA refused the request for reduced hours in January 2017 on the basis that it would not be possible to recruit another biomedical scientist to fill the remaining hours at the end of the day. There was then a period of ongoing dialogue between Mrs Mahoro and NCA, between January 2017 and July 2018, during which different proposals for reduced working hours were considered.
Options for suitable chairs were assessed. However, the type of chair recommended by OH moved on castors, and NCA's equipment supplier considered that castors should not be fitted on chairs that would be used for work at high laboratory benches due to safety concerns. It was willing to supply the chair with castors, but only if NCA signed a disclaimer. NCA considered this would put it at undue risk, and refused to do so.
Various changes to Mrs Mahoro's duties were trialled, and she was given non-laboratory duties where possible. OH reports were sought at regular intervals. NCA considered that Mrs Mahoro was only doing around 1 or 2% of a band 6 biomedical scientist's laboratory duties, and that the non-laboratory duties she was performing were appropriate for a much lower band role. Mrs Mahoro, by contrast, felt overburdened with non-laboratory work. She went off sick with stress in July 2018 and did not return.
NCA commenced a review under its Long Term Sickness (LTS) policy in October 2018. Between then and November 2019, five meetings took place under the LTS policy at which OH reports were considered and possible arrangements for Mrs Mahoro to return to work were discussed. As well as options for working hours and suitable chairs, this included a trial of a digital microscope in the laboratory, to reduce the neck pain Mrs Mahoro experienced using a manual microscope. However, the trial concluded that the digital microscope was not sufficiently accurate and would create a risk to patients.
Ultimately, in February 2020, following a further OH report, NCA dismissed Mrs Mahoro on capability grounds, as it could not reasonably accommodate the adjustments that would be required to facilitate her return to work. Mrs Mahoro's internal appeal was unsuccessful, and her employment ended on 31 July 2020.
Employment tribunal and EAT decisions
Mrs Mahoro brought various claims in the employment tribunal, including failure to make reasonable adjustments, unfair dismissal and discrimination arising from disability. The tribunal dismissed all her claims.
NCA's refusal of Mrs Mahoro's proposed working hours was not a failure to make reasonable adjustments, given the additional pressure the arrangement would place on the rest of the team and the difficulty of recruiting someone to cover the short period at the end of the day. As for NCA's refusal to provide a chair with castors, the safety risk this posed meant that it was not a reasonable adjustment. Allowing use of a digital microscope was not a reasonable adjustment given the danger to patients.
The dismissal did not amount to discrimination arising from disability. NCA had the legitimate aim of employing someone to fulfil the contractual duties of the band 6 biomedical scientist team leader role. There was no way to enable Mrs Mahoro to fulfil those duties in a safe manner, so the dismissal amounted to a proportionate means of achieving that aim. Nor was the dismissal found to be unfair. Mrs Mahoro had been on sick leave for almost two years when NCA decided to dismiss her, the adjustments she needed to return to her role were beyond what it would be reasonable to make, the LTS process had involved thorough consultation with her, and up-to-date OH reports had been sought.
The EAT rejected Mrs Mahoro's appeal. It agreed with the tribunal on all points, holding that Mrs Mahoro had failed to reach the high threshold to show that the tribunal's reasoning was perverse.
What does this mean for employers?
This case shows how proper consideration of proposed adjustments, including consulting with the employee and seeking OH advice, can help employers if they are later faced with a claim that they have failed to comply with the duty to make reasonable adjustments. It is reassuring that the tribunal and the EAT recognised that refusal to make adjustments may be justified where those adjustments would involve a risk to safety or are not operationally feasible. It also demonstrates the sorts of steps employers will be expected to take in order to dismiss fairly and without discrimination for capability in cases of long-term sickness absence.
