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Under Section 4A of the Disability Discrimination Act 1995 (DDA), employers had a duty to make reasonable adjustments to working practices in order to ensure that a disabled employee was not disadvantaged. Under the Equality Act 2010, which has now replaced the DDA, this duty remains largely the same.

In a recent case (Tameside Hospital NHS Foundation Trust v Mylott), the Employment Appeal Tribunal (EAT) held that an employer’s failure to take steps to facilitate a disabled employee’s application for ill health retirement was not a breach of Section 4A of the DDA. Whilst upholding other findings of disability discrimination against the Tameside Hospital NHS Foundation Trust, which related to its handling of Mr Mylott’s situation when he was absent from work for a long period with work-related stress, the EAT overturned this aspect of the judgment of the Employment Tribunal. In the EAT’s view, the duty under Section 4A did not extend to enabling a disabled employee who was no longer able to do their work (or any available alternative) to leave their employment on favourable terms. The whole concept of an adjustment is that it is made in order to make it possible for the disabled employee to remain in employment. It does not extend to taking steps to ensure that they are compensated for no longer being able to do so.

Says Sue Jones, “Whilst this decision clarifies the scope of an employer’s duty to make reasonable adjustments for a disabled employee, long-term sickness absence is a difficult area of the law and we strongly recommend that you take advice based on your specific circumstances before taking any action.”