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Exempting disabled employee from absence management policy was not a reasonable adjustment

Mr Jennings had suffered intermittent ill-health absences throughout his employment with The London NHS Trust, latterly as a result of a stress-related mental issue incorrectly diagnosed as post-traumatic stress disorder (later diagnosed as paranoid personality disorder and depression). In the 8 months prior to his dismissal, he had been absent for 100 days.

In August 2007, Mr Jennings was issued with a first written warning in accordance with the Trust’s short-term absence policy. The Trust then began the long-term absence procedure without informing Mr Jennings (in breach of the policy) as he had failed to attend any of the scheduled meetings. Mr Jennings was referred to Occupational Health who advised that a return to work was possible in March 2008. A final stage meeting took place in January 2008 where the Claimant was dismissed on the basis of his continued absence.

Mr Jennings raised a tribunal claim for unfair dismissal and a failure to make reasonable adjustments. Both claims were rejected by both the tribunal and EAT.

Unfair dismissal

The tribunal accepted that the Trust had breached their long-term absence policy, however, this did not render everything that happened thereafter unfair. Mr Jennings could have made representations during the rest of the process but failed to do so.

The tribunal also rejected Mr Jennings’ argument that his dismissal was premature given the OH report suggested a possible return to work in March 2008. They found that OH reports were usually “positive and optimistic” as that was what employees suffering from depression needed to hear. Mr Jennings had himself been very pessimistic about the chances of him returning to work in March.

Failure to make reasonable adjustments

On the matter of disability, the EAT accepted that Mr Jennings had been initially misdiagnosed with PTSD but found that the Trust had “imputed knowledge” of the Claimant’s disability as he was undoubtedly suffering from a mental impairment for over 12 months at the time of dismissal. The tribunal found “if a wrong label is attached to a mental impairment, a later re-labeling of that condition is not diagnosing a mental impairment for the first time using the benefit of hindsight, it is giving the same mental impairment a different name”.

In relation to the reasonable adjustments claim, the tribunal held that as Mr Jennings did not engage in any meaningful discussion to facilitate his return (and failed to fill in a stress questionnaire), it was not reasonable for the Trust to second-guess the reasonable adjustments that would benefit him. Furthermore, exempting him from having to comply with the short-term absence policy by allowing him to remain in employment (the adjustment Mr Jennings argued should have been made) was not reasonable as it would have produced operational problems for the Trust, especially as the resources of the relevant department were already under pressure.

The full case report is available here: Jennings v Barts and The London NHS Trust UKEAT/0056/12.

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