redeployment as a Reasonable Adjustment – D’Silva v Croydon NHS Trust
Anyone who has tried to obtain redeployment as a reasonable adjustment for an employee with a disability will know that it can be a Herculean task. Even large employers will often find a list of reasons why potential alternative roles are unsuitable. Vacancies will disappear overnight, only to mysteriously reappear when the employee has left the company.
The pitfalls of this approach are well illustrated in the case of Mrs D’Silva v Croydon Health Services NHS Trust. Mrs D’Silva was an NHS receptionist who had worked for the Trust for 18 years. In the later stages of her employment she developed a phobia of working with the public. After a number of periods of absence the Trust sought to redeploy her to a role which mixed administration and patient duties.
The role was manifestly unsuitable for Mrs D’Silva and its interaction with the public continued to cause her distress. She had further absences from work and the Trust took her through the stages of its sickness absence procedure. During this period she saw Occupational Health and told them she had become ‘terrified’ of the public. OH recommended that she should be redeployed to a ‘back office’ role. This did not happen and in November 2018 Mrs D’Silva was dismissed for her poor attendance.
London South Employment Tribunal found that the Trust’s failure to consider redeployment was unreasonable and made a finding of unfair dismissal for which she received £6,780.54. It also found that the Trust’s failure to implement the redeployment reasonable adjustments recommended by Occupational Health was an act of discrimination meriting an award of £49,904.
Like any first instance decision, this case stands on its own facts and it’s not binding but it does contain some important lessons for employers. Foremost amongst these is to give proper consideration to redeployment, especially when it is recommended by Occupational Health.
Tribunals rightly consider that an important part of their role is in ensuring that employees with disabilities can participate on an equal basis in the workplace. They will have limited sympathy with employers who ignore the advice of their own Occupational Health practitioners and who ignore practical solutions which could retain employees with disabilities in stable employment.
This blog has been prepared by Mark Alaszewski, Employment Solicitor at didlaw.