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Contents

Adjusting for disability

The House of Lords has made an important decision in the case of Archibald v Fife Council (2004, IRLR 651) about the definition and scope of an employer's duty to make reasonable adjustments under the Disability Discrimination Act 1995. In particular, it said that the duty arises even if an employee becomes totally incapable of doing the job for which she is employed if she could do another job for that employer.

What were the facts in the case?

Ms Archibald was employed by Fife Council as a road sweeper, but as a result of a complication during minor surgery, she became virtually unable to walk. All the parties agreed that she was a disabled person under the Act.

The medical advice was that, although she could no longer carry out the job of road sweeper, she could do sedentary work. She retrained and applied for over 100 posts within the council, all of which were on a higher grade. Because the council operated a policy that required employees applying for posts at higher grades to undergo an interview process, she had to be interviewed for them all. She was not offered any of the jobs she applied for.

Ms Archibald complained that she should not have been made to compete for alternative employment if she could show that she was able to perform the duties and responsibilities of the job she was applying for. As a result, she said her employers had failed to comply with a duty of reasonable adjustment under section 6 of the Disability Discrimination Act.

Her claim was dismissed by the tribunal, the employment appeal tribunal and the Court of Session in Scotland (the equivalent of the Court of Appeal in England and Wales).

What did the House of Lords decide?

The question for the House of Lords was whether the duty under the Act to make reasonable adjustments is triggered when an employee becomes incapable of doing the job for which she was employed, but is still able to do a different job for that employer. The answer to that question is clearly yes.

In this case, it was an implied condition of Ms Archibald's job description that she be physically fit. This exposed her to another implied 'condition' or 'arrangement' of her employment, which was that if she was physically unable to do the job she was employed to do she was liable to be dismissed.

As a result, she was placed at a substantial disadvantage in comparison with people who are not disabled. The steps that the employer might have to take to prevent the arrangements placing her at a substantial disadvantage in comparison with non-disabled persons include transferring her to another job.

The House of Lords held that the tribunal was wrong to say that transferring Ms Archibald without requiring her to undertake a competitive interview could not be a reasonable adjustment. The duty of reasonable adjustments could apply to any aspect of a person's job, and that could include situations where they could no longer do the job that they were employed to do.

The Disability Discrimination Act is different from other anti-discrimination legislation, in that it requires employers to take positive steps to help disabled people which they are not required to take for others.

The case was remitted to the employment tribunal to consider whether the employers fulfilled their duty to take such steps as it was reasonable in all the circumstances for them to take.

Comment

This case is important because it illustrates the breadth of the potential application of the duty to adjust. Although Ms Archibald has not won her case, the point is that the council should have considered promoting her without putting her through a competitive interview as a possible adjustment.