Discretionary onus

Employers must be aware of the extent of their duty to adjust for disabled employees or risk falling foul of the Disability Discrimination Act. By Jane Mann and Charis Martyn

In the UK, 11 million people aged 16 or over are disabled, as defined under the Disability Discrimination Act 1995 (DDA). Only 44 per cent of disabled people are economically active compared with 79 per cent of non-disabled people.

The DDA requires employers to address the disadvantages that disabled people face in the workplace by making reasonable adjustments to their offices and to do their part to enable disabled people to secure and retain employment.

Archibald v Fife Council
The scope of this duty to make reasonable adjustments was considered in the case of Archibald v Fife County Council (July 2004). Baroness Hale gave the keynote speech, in which she said: “The 1995 act, however, does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment.”

Often it is presumed that the purpose behind the DDA, and in particular the duty imposed on employers to make reasonable adjustments, was to put disabled employees on a level playing field with their non-disabled colleagues. However, what has become clear since Archibald, and in more recent cases, is that the law requires that disabled employees receive more favourable treatment in certain circumstances. The implications of this for employers are significant.

When the concept of reasonable adjustments was introduced by the DDA in 1995, attention was focused on the physical adjustments that employers could make, such as installing a lift if an employee could not climb stairs. However, if employers now adopt that limited approach to reasonable adjustments, they will face employment tribunal claims.

Employers are expected to consider reasonable adjustments in all aspects of the working relationship. Archibald established that an employer may be required to offer an employee an alternative role on a higher salary if they are no longer able to carry out their existing role because of their disability. The House of Lords held that Archibald should have automatically been offered a job at a higher grade, with no need for an interview.

Smith v Churchill Stairlifts
Smith v Churchill Stairlifts (2006) emphasises the importance of identifying the relevant arrangement that places the individual at a disadvantage. Smith had lumbar spondylsis which made it difficult for him to carry heavy objects. He underwent a successful interview with Churchill Stairlifts for a job as a sales surveyor and was offered a place on a training course on the understanding that, if he passed the training course, he would be offered a job. The role included carrying a full-sized radiator cabinet as a sales aid. The company decided that, because of Smith’s disability, he would not be able to carry the radiator cabinet and withdrew his place on the course. Smith brought a claim for disability discrimination.

A unique aspect of the case was that the company brought a full-sized cabinet to the tribunal hearing. Smith attempted to lift it and could not. Members of the tribunal also attempted to lift it and were unsuccessful. The tribunal concluded that Smith had not been placed at a substantial disadvantage by the requirement to carry the cabinet as the population at large would also be unable to do so. The Court of Appeal considered this approach and held that it was wrong. The comparators to Smith were the six successful candidates who were able to carry the cabinet and were offered jobs, and not the general public. As a result, even if it is possible to identify non-disabled employees who would also be put at a substantial disadvantage, it does not mean that there will be no discrimination.

Southampton City College v Randall
In the case of Southampton City College v Randall (2006), Randall was a lecturer who suffered from an illness that affected his vocal chords. His employer did not carry out an assessment of what changes could be implemented to accommodate his condition and Randall worsened and went off sick. At the same time, his employer carried out a restructuring exercise and Randall was not appointed to any job following the reorganisation. He then resigned, claiming constructive dismissal.

The fact that Randall’s employer did not consult him about what reasonable adjustments could be put in place to make his job workable was identified as a key failing. The duty on the employer to make reasonable adjustments included creating a new job for Randall. The employer had undergone a substantial reorganisation and Randall’s line manager conceded in evidence that he had a “blank sheet of paper” and that it would have been possible to devise a job to accommodate his disability.

Bryan Rothwell v Pelikan Hardcopy Scotland
Employers should not take decisions based on an individual’s health without consulting with them first, as Bryan Rothwell v Pelikan Hardcopy Scotland (2005) demonstrates. Rothwell suffered from Parkinson’s disease and claimed unfair dismissal and discrimination contrary to the DDA in respect of the fact that the company had failed to consult him prior to dismissing him on grounds of ill-health.

Rothwell’s health deteriorated to the point that a question arose as to his continuing fitness to work and he was assessed by an occupational health doctor. She reached a conclusion that it was extremely unlikely that he would recover sufficiently to allow him to return to work in the future. The report contrasted with that of Rothwell’s consultant neurologist, who was more optimistic about his future employment, given the possibility of a new treatment. The decision to dismiss was taken on the basis of the occupational health doctor’s opinion and Rothwell was not consulted in relation to his own neurologist’s view.

What this case demonstrates is that the need to make reasonable adjustments continues throughout employment, as although Rothwell’s employer had treated him with a high degree of consideration and accommodated his disability for many years, it nevertheless discriminated against him by failing to take into account his views about his ongoing employability.

The key point arising is that, if his employer had consulted Rothwell, it would probably have been able to dismiss him without breaching the DDA.

Lessons that an employer can learn
Employers should understand the full extent of the duty to make reasonable adjustments. This goes beyond placing individuals on an even playing field and involves a duty to give disabled employees more favourable treatment in certain circumstances.

The duty to make reasonable adjustments applies to every stage of employment and is not limited to physical adjustments or changes to working hours. It also extends to the conduct of grievance procedures, disciplinary procedures and consultation about an individual’s health.

A reasonable adjustment could include making a new role available for an individual or promoting them to a different role. This raises interesting questions about how much additional training would need to be given by an employer if a role is substantially different from an individual’s existing role. Training is likely to be regarded as a further element of the duty to make reasonable adjustments. –
Jane Mann is head of employment and Charis Martyn is an assistant solicitor at Fox Williams

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