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Reasonable adjustments and dismissal

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Last updated 12th November 2011.

This page deals with a limited technical point on the reasonable adjustment duty rules, namely that it now seems the duty may require that an employer should not dismiss someone.

Summary

Before 2004, the reasonable adjustment duty was held not to apply to a dismissal itself. However, this has very likely now changed – the reasonable adjustment duty may require that an employeer should not dismiss someone.

For examples of reasonable adjustments related to stammering, including where dismissal may be a possibility, see Examples of reasonable adjustments: In the job.

It is important that even if the reasonable adjustment duty does not help, a dismissal may be unlawful as discrimination arising from disability.

Legal reasoning

The Court of Appeal in Clark v Novacold (1999) held that dismissal could not itself be a breach of the duty to make adjustments.

However, in 2004 the reasonable adjustment duty was broadened to comply with the Framework Employment Directive – ‘arrangements’ was expanded to any ‘provision, criterion or practice’. There were conflicting decisions as to whether this meant a dismissal could itself be a failure to make reasonable adjustments. The Employment Appeal Tribunal (EAT) said yes it did in Fareham College v Walters (2009).

This view has been strengthened by the Court of Appeal judgment in Aylott v Stockton on Tees Borough Council (July 2010), where the Court of Appeal was very sypathetic to an argument that the wording of the UK statute has now changed, and that the Framework Directive with which the UK must now comply includes dismissals. However, the Court of Appeal did not have to reach a firm conclusion on the point in that case.

Position before 2004

The Court of Appeal said in Clark v Novacold (1999) that a dismissal was not an ‘arrangement’ falling to be adjusted under the reasonable adjustment duty (until 2004 the duty only applied to ‘arrangements’). However, pre-dismissal arrangements were subject to the reasonable adjustment duty. For example, redundancy criteria are subject to the duty as in Morse v Wiltshire County Council, as well as capability procedures and sickness or absence policies. The duty would also apply to reasonable adjustments to working arrangments to enable the employee to continue doing the job, or indeed to looking at whether there might be a transfer to a new job.