Duty to Make Reasonable Adjustments

The recent case of McHugh v NCH Scotland [2006], concerned an allegation of disability discrimination. The employee commenced employment as a project manager for the employer, a children’s charity, in 1997. In 2001, she was certified unfit to work on the grounds of depression.In August, the employee’s GP told the employer’s occupational health adviser that the employee continued to suffer from moderately to severe depression but would be able to return to work when her mood had sufficiently recovered. In December, the employer met with the employee in order to discuss the possibility of a staged return to work. The employee enquired as to whether the staged return to work would be possible to occur in the training section of the organisation. Unfortunately she was informed that there were no vacancies.On the 1st of February 2002, the employee requested early retirement on the grounds of ill health. The employer told the employee that her application had not been submitted for approval as it had not been supported by the occupational health adviser, who on the basis of medical information from her GP, did not consider her to be permanently incapacitated as a result of her illness. ird forms

At a meeting in May, the employee and employer agreed to seek direction from a specialist medical report. The employer stated that it would welcome the employee back to work through a managed programme, which would require an indication of a return date as outlined by the results of a consultation with her GP.In June, the employer was advised that the employee had instructed a solicitor and that it should not communicate directly with her.The specialist report indicated that it was possible that the employee would return to health over a period of six to twelve months, but that it was unlikely she would be able to return to work in her previous capacity and that early retirement should be considered.Based on that report, the occupational health adviser indicated to the employer that he did not consider the employee permanently incapacitated, as there was a possibility that her health could improve. In April 2003, at the request of the employee, the employer submitted a further application for early retirement to the occupational health adviser. The occupational health adviser refused to support the application.


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