Employers are sometimes faced with the dilemma of having to manage a seriously ill employee in circumstances where they are unable or unwilling to return to work. What do you do where you have engaged and made reasonable adjustments but the employee continues to refuse to return?

The recent case of Preston v E.on Energy Solutions Ltd, is a good example of not only how important it is for employers to correctly engage with employees who have a disability, but also the limitations that apply to protections under the Equality Act 2010.

What Is a Claim of Discrimination Arising from Disability?

Under section 15 of the Equality Act 2010, a person will discriminate against a disabled person if they treat the disabled person unfavourably because of something arising in consequence of their disability. However, a claim will not succeed if:

  • the treatment can be objectively justified.
  • the person did not know, and could not reasonably have been expected to know, about the disability

In the case in question, Mr Preston was employed as a Complaints Manager by E.on. It was accepted by the court that he suffered from a disability (Primary Reading Epilepsy) that gave rise to a significant risk of disadvantage within the workplace because it increased this risk of seizures when reading. However Mr Preston had not disclosed his condition to his employer until after he went off sick with an unrelated stress condition.

His employer tried to engage with Mr Preston and reasonable adjustments were considered and put in place. However, Mr Preston remained absent from work due to his conditions and refused to engage with the measures put in place for him.  After a lengthy period of illness he was dismissed.

It was found by the Employment Tribunal that whilst the Primary Reading Epilepsy was indeed a disability, as it had not been disclosed to the employer and they could not reasonably have become aware of the condition until after he was off sick, there was no duty to make reasonable adjustments before Mr Prestons’ absence.

It was further found that, whilst it was true Mr Preston was disabled, he had not been dismissed because of his disability but as a result of his refusal to engage with the employer and the reasonable adjustments put in place.

The case was referred to the EAT, who dismissed the appeal, finding that,

  • there was nothing disclosed by Mr Preston which could mean the employer knew or ought reasonably to have known of the disability before he went on sick leave.
  • The employer was entitled to find that Mr Preston’s absence due to stress was unrelated to his disability.
  • Mr Preston’s dismissal was a proportionate means of achieving the employer’s legitimate aim as Mr Preston had continued to refuse to respond to the reasonable managerial requests to return to work in circumstances where all the reasonable adjustments had been made to enable him to return to work and he had been found by an independent expert to be fit to return to work.

In conclusion

The key to this case is that the employer had engaged with the employee to consider reasonable adjustments as soon as they were aware of his condition. They had obtained a medical report from an occupational health specialist and put all reasonable adjustments in place. The employee was only dismissed after they continued to refuse to return to work despite the independent specialist concluding he was fit to return.

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.


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