Instead of agreeing to return to work under the reasonable adjustments that her employer was willing to put in place in relation to her existing role as supervisor, the Claimant applied, unsuccessfully for a number of other roles within the organisation. Her persistent refusal to return to her role as hotel supervisor with reasonable adjustments subsequently resulted in her dismissal.
The employer had offered various reasonable adjustments to allow the Claimant to return to work but she refused to return to her previous role. The Claimant sought an alternative role in finance or sales, even though she did not have the requisite qualifications or training for posts in these areas. Over a five month period the Claimant submitted 15 applications for alternative employment within these areas which were all unsuccessful. There were also various vacancies for switch board operators and receptionists but the Claimant stated that she was over-qualified for these roles.
The Claimant attempted to rely on the decision in the important House of Lords case from 2004 of Archibald v Fife Council. In that case it was decided that where there was a duty on an employer to make reasonable adjustments this may require the employer to appoint a disabled employee to another role, even if they were not the most suitable candidate for that role. However, it was held that the situation in Archibald was different, given that the employee in Archibald was a road sweeper and following complications during an operation was practically unable to walk and therefore physically unable to return to her previous role. The EAT found that the Tribunal was entitled to find that, with reasonable adjustments in place, Ms. Makuchova could have returned to her role as hotel supervisor. Whilst the Claimant suffered breathing problems and a condition with her back, the Respondent suggested a three week phased return, up to a fifteen minute break for every hour worked and not having to carry heavy items. Ms. Makuchova was not even willing to try these adjustments and argued that they would be unfeasible in a busy restaurant.
As is pointed out in the EAT's judgement, the obligation on the employer is to do what is reasonable, and not necessarily to accept what the employee believes is reasonable.