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Do I have to make reasonable adjustments during the notice period?Posted on by Pardip Singhota
Employers have an obligation to make reasonable adjustments where an employee, or a potential employee, is disabled and is protected by the Equality Act 2010. The extent of the adjustments must be reasonable to that employer and factors such as cost can be taken into consideration to determine whether this is reasonable.
These obligations don’t just come into force when the employee has been appointed into a role, the responsibilities to make reasonable adjustments extend to the recruitment phase, maybe holding the interviews on the ground floor where an individual would struggle to climb stairs or is in a wheelchair.
Once an employee is under notice, whether they have resigned or the employer has given them notice to terminate the contract, these duties to make reasonable adjustments continue through the notice period. In the event an employer is undergoing a redundancy consultation process and having followed a fair and objective selection criteria a disabled employee is at risk of redundancy and there is an opportunity to be redeployed elsewhere in the Company, the employer must make reasonable adjustments to help the disabled employee prepare, attend and go through the interview and selection process. Failing to make adjustments at this stage would render a disability discrimination claim.
In the case of Fox v British Airways, British Airways was pursued through Employment Appeal Tribunal because Mr Fox who was off on long term sickness absence and had been given notice of dismissal. During the notice period Mr Fox’s condition improved somewhat and his medical consultant also provided an up to date prognosis to the employer that Mr Fox may be able to return to work. This was not taken into account by the employer and the dismissal took effect. One of the findings by the EAT was that the appeal period was not extended to take into account the new information which could have been a reasonable adjustment.
Where an employee with a disability is being dismissed it is imperative that up to date medical information is available and considered, even if it means extending the appeal time.
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