No. An employer’s duty to make reasonable adjustments does not extend to taking steps to facilitate ill-health retirement. This was established in the case of Tameside Hospital NHS Foundation Trust v Mylott in the Employment Appeal Tribunal in 2010, UKEAT 0399/10/1304.
What is the purpose of reasonable adjustments?
The purpose of reasonable adjustments is to take all reasonable steps to maintain employment. Ill-health retirement is a form of compensation for leaving employment and is therefore incompatible with the reasonable adjustments duty.
This being said a capability dismissal of an employee who has a disability will be unfair where an employer operates a pension scheme which provides for ill-health retirement and the employer fails to consider whether the employee might be eligible before dismissing.
In First West Yorkshire Ltd (T/A First Leeds) v Haigh [2008] IRLR 182 the Employment Appeal Tribunal said that in addition to the usual steps in a capability process of obtaining up to date medical information and considering alternatives to dismissal, employers should turn their minds to whether ill-health retirement is a possibility for the employee in question. Reasonable steps are expected by the employer to ascertain the position.
What about income protection and capability dismissal?
Where an employee qualifies for income protection following a substantial period of time off for ill health an employer may not lawfully dismiss for capability unless provision of this benefit has been explored. There is a duty on the employer to take all reasonable steps to secure the benefit if it is available. If it is not included in the employee’s contractual terms this requirement is not necessary.
We have assisted clients with securing ill-health retirement benefits from their employer but you do not need a legal specialist to be able to explore this. The terms of your company’s pension scheme and the medical information you provide will dictate what is possible.
Commuting PHI policies
We routinely advise on income protection claims including commutation of PHI policies by payment of a lump-sum tax free benefit and the interplay between PHI and termination of employment.
Challenging income protection decisions by insurers
If you wish to challenge the validity of a decision by an income protection insurer we can also assist with this and have considerable expertise in this area. You can also do this using the free services of the Financial Ombudsman Service.
Written by Anita Vadgama
