The World of Work by Harry Sherrard

“Just be reasonable”

“Reasonable” is the employment lawyer’s favourite word. A reasonable investigation must precede a disciplinary sanction. Dismissal must be a sanction that is fair and reasonable in all the circumstances. And when later being assessed by an Employment Tribunal, the test applied is that dismissal must have been within the range of reasonable responses.

Many, sometimes competing, factors go into the mix in deciding what is reasonable, and making the judgement call is not always easy.

Most challenging of all perhaps is the requirement to make reasonable adjustments for disabled employees. Not only are there many factors to take into account, but I often find that employers are unsure as to who can advise them as to what is or is not reasonable.

To be clear, that does not fall within the remit of occupational health. Whilst occupational health advisers can give opinions as to which adjustments are possible, and which would, for example, aid the employee in returning to work, it is not their function to advise employers what is reasonable. That is not a medical issue, but a legal question. Therefore this is a judgement call to be made by blend of senior management and legal advice. What are the cost implications of the adjustment? Can the employer afford it, and are any external grants available? Would the adjustment have a significant and long-lasting effect on the employee’s return to work? Taking these and other factors into account, legal counsel, drawing on experience of similar cases, can assist employers in making the judgement call as to what is reasonable.

Take a case handled recently by my co-director Dan Soanes at Reading Employment Tribunal. Often a disability case can be fought on several fronts, but in this case all the potential issues were narrowed down to just one. The parties, having consulted occupational health, agreed that the employee was disabled; they agreed that this triggered the need to make reasonable adjustments; and the potential scope of the adjustments was clear. The only issue to be decided by the Tribunal therefore was whether or not those adjustments would be reasonable. Our client, though with significant turnover, operates on thin margins, and the £10,000 cost of the adjustments would have been a very significant expense. Even with the adjustments, the employee would still have struggled somewhat to perform her duties comfortably and to the requisite standard.

In the end, a compromise was reached, and the employee accepted a one-off payment of an amount similar to the cost of the adjustments as a severance payment, with the intention of seeking alternative, lighter work.

The case illustrates the sequence that the employer must follow in such a case, the different sources of advice, the finely balanced questions which arise, and the scope for employers to reach mutually satisfactory compromises.


Back to Blogs Page

Go to News for the latest about the industry