Willing and disabled
27 September 2004
From 1 October 2004, the Disability Discrimination Act 1995 (DDA) will apply to all employers, regardless of their size. The current small employer exemption for businesses with fewer than 15 employees will cease to apply. All employers will now have to come to terms with what has proved to be one of the most complex pieces of employment legislation. The question is whether small businesses will have the resources to do so.
The DDA is unique among the UK’s discrimination laws. Not only does it prohibit less favourable treatment on grounds of an employee’s disability, it requires employers to make “reasonable adjustments” to a disabled employee’s working arrangements to prevent them from being placed at a disadvantage.
The scope of the reasonable adjustment obligation is a crucial question. Two important cases decided over the summer demonstrate that, in certain situations, the obligation can extend to positive discrimination in favour of the disabled person.
The first case, Archibald v Fife Council, concerned the offering of vacancies to a disabled employee no longer able to do her existing job. Susan Archibald was employed as a roadsweeper by Fife Council. She became disabled as a result of a medical complication which occurred during a minor surgical operation. She was virtually unable to walk. The council arranged for her to be retrained to equip her with the necessary skills to do sedentary office work. She was keen to do this and her course assessments were very positive. She applied for more than 100 desk jobs within the council, all of which were at a higher grade to her previous job. Each time she was unsuccessful and a more qualified candidate got the job. When she was dismissed, she started legal proceedings. She claimed that her rejections were not linked to her disability but that the interviewers did not look beyond the fact that she had been a roadsweeper.
By the time the case reached the House of Lords, the legal debate had focused on whether the council’s redeployment policy (which required a competitive interview for all transfers to higher grades) had to be varied to allow it to transfer Archibald to a higher grade. The court said that, where dismissal was the likely consequence of not transferring a disabled employee to a higher grade job which they were well equipped to do, then it might well be a reasonable adjustment to put the disabled employee into the higher grade job. In Archibald’s case, this involved dispensing with the competitive interview process.
The second case, Nottingham County Council v Meikle, concerned an employer’s obligation to continue paying sick pay to an employee absent from work because of a disability. Gaynor Meikle was sight disabled. In her job as a teacher for the council, she identified various reasonable adjustments that needed to be made to her working arrangements, such as provision of larger print school timetables. When the council did not make the adjustments identified, she went on long-term sick leave. After 100 days’ absence, the council reduced her sick pay to half, which was in accordance with its general sick pay policy. Meikle claimed that this was unlawful disability discrimination.
The Court of Appeal upheld her claim on the basis that the cause of her absence was the council’s failure to make the reasonable adjustments that had been identified. The court said that the council should have considered whether, if those reasonable adjustments had been made, Meikle would have been absent for more than 100 days and was therefore liable to have her sick pay reduced. The court found that this would not have been the case and therefore made a finding of disability discrimination. Since the reduction in sick pay arose from a failure to make reasonable adjustments, the usual defence of justification was not available.
The Meikle case did not deal with the situation where the employee’s absence does not arise from any failure to make reasonable adjustments. Previous cases have, however, made clear that the continuation of sick pay may well in itself be a reasonable adjustment for employees absent due to a disability. As always, it will depend on the circumstances of the case. Factors to be considered will include whether continuing sick pay will help to get the employee back to work, the content of the employer’s normal sick pay policy and the resources of the employer.
The effect of the Archibald and Meikle cases is not to require employers always to discriminate positively in favour of disabled employees. They are, however, a powerful reminder that employers must be very careful when dealing with disabled employees. Particular points for employers to note are:
- Where an employee is no longer able to fulfil their role, consider other vacancies. Include in this roles that the employee might be able to carry out if retraining were provided.
- Where the employee is one of a number who would be well qualified for a vacancy, consider whether the disabled employee should be transferred in preference to others.
- Do not penalise the disabled employee because their previous work experience is not what would have been expected for someone applying for the vacancy in question.
- Where the disabled employee is on long-term absence, consider whether company sick pay should be continued (possibly beyond any contractual minimum period).
- Where reasonable adjustments could be made to bring the employee back to work, sick pay should be continued.
- If there are no such adjustments that could be made, consider still whether continuing sick pay might itself be a reasonable adjustment. Would doing so help bring the employee back earlier?
The Archibald and Meikle cases show just how far the reasonable adjustment obligation can extend. The key message for employers is to consider the issue with an open mind and, wherever possible, involve the employee in the discussion. Often, the employer’s fatal mistake is a failure to consider the question of reasonable adjustments at all. An employer must be able to produce evidence that it considered adjustments and explain its reasons for deciding which were to be implemented and which were not.
As is often the case, the question of what is reasonable will vary on a case-by-case basis. One factor that will be relevant is the employer’s resources to make adjustments in the workplace. This may be of some help to the small employers, which will be covered by the DDA from October. Conversely, however, employment tribunals will often expect larger employers to do more. It will be interesting to see how small businesses cope with what is a difficult piece of legislation and whether there is a rise in the number of claims, as might be expected.
Christopher Fisher is a partner in the employment group at Mayer Brown Rowe & Maw