The House of Lords has ruled that the positive duty to make reasonable adjustments under the disability discrimination legislation may extend to positively discriminating in favour of disabled people. The case has been remitted to the employment tribunal to decide whether Fife Council failed to make reasonable adjustments and/or treated Mrs Archibald less favourably by requiring her to undergo a competitive interview for a sedentary job rather than offering it to her as of right.
Mrs Archibald was employed as a road sweeper. In April 1999 she underwent minor surgery as a result of which she was unable to walk and was therefore disabled. This meant that she became unable to carry out her duties which required her to be physically fit. Steps were taken by the council to explore whether there was any suitable alternative employment available for which Mrs Archibald was physically suited. A number of alternative sedentary posts were identified but these were at a higher grade than the grade of a road sweeper. In accordance with the council’s redeployment policy this meant that Mrs Archibald had to undertake competitive interviews for the posts. She unsuccessfully applied for over 100 alternative posts and eventually in March 2001 she was dismissed on the grounds of capability.
Mrs Archibald brought disability discrimination proceedings against the council. She contended that she should not have been made to compete for the alternative posts if she could show that she was able to perform the duties and responsibilities of the alternative post in question, and that the council had failed to comply with a duty to make reasonable adjustments under section 6 of the Disability Discrimination Act 1995 ("the Act").
The Employment Tribunal, Employment Appeal Tribunal and the Court of Session each dismissed Mrs Archibald’s complaint and found that the council had not failed to comply with any duty to make reasonable adjustments. In particular, attention was drawn to section 6(7) of the Act which provides that "nothing in this Part is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others" and thereby prevents positive discrimination.
The House of Lords’ Decision
The House of Lords allowed Mrs Archibald’s appeal and remitted the case to the employment tribunal.
The requirement that Mrs Archibald had to be physically fit to work amounted to an "arrangement" under section 6 (2)(b) of the Act which she was no longer able to meet and that exposed her to another "arrangement" or condition which was that if she was physically unable to do the job she was employed to do then she was liable to be dismissed. These arrangements placed Mrs Archibald at a substantial disadvantage in comparison to those non-disabled persons.
The positive duty to make reasonable adjustments may extend to positively discriminating in favour of disabled people.
The positive obligation to make reasonable adjustments potentially includes the right for disabled persons to "trump" other job applicants where the disabled person is suitable to do that work but may not be the best candidate for the job.
Under the Act the duty to make an adjustment is triggered where an employer’s "arrangements" place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled. The House of Lords’ ruling means that "arrangements" now appear to encompass anything that places a disabled person at a disadvantage, including the job description for a post and the risk of dismissal in the event that person becomes incapable of fulfilling the role.
The duty to make reasonable adjustments could include transferring a disabled employee from a post which she can no longer do to a post which she can do, even though she may not be the best person for that job. What steps are reasonable depends on the circumstances of the particular case. In this case, therefore, transferring Mrs Archibald to a sedentary position for which she was suitably qualified was among the steps which it might have been reasonable in all the circumstances for the council to take once she could no longer do the job of road sweeper. The employment tribunal was wrong to decide that this would be preferential treatment and therefore not a reasonable step to take. The test is an objective one of what a reasonable employer ought to do. Employers should note that as of 1 October 2004 this test will become more rigorous with the removal of the possibility of justifying a failure to make reasonable adjustments.
Implications for employers
It is important to point out that the House of Lords did not hold that Mrs Archibald ought to have been transferred into the alternative vacancy. Instead, they held that it had been an error of law for the employment tribunal not to consider whether it was reasonable for the council to do so.
Baroness Hale said "we are not talking here of high grade positions where it is not only possible but also important to make fine judgments about who will be best for the job." In Archibald’s case the positions being considered were those which a great many people could fill and for which no one candidate may obviously be the best. This decision will not therefore affect employers looking to fill high grade posts but, in some cases, it may be difficult to know where to draw the line between one type of position and another.
The Archibald case did not consider the position with regard to new recruits where a competitive recruitment process is often undertaken. The principles set out above will almost certainly be extended to cover that type of situation which could mean that it will be reasonable for employers to adjust the content of a job so that a disabled candidate may be appointed.
Having said all of the above, section 6 (3)(c) of the Act expressly contemplates that an example of the steps which an employer might reasonably be required to take by way of reasonable adjustments is "transferring him to fill an existing vacancy". This decision is therefore hardly surprising but what steps are reasonable will depend on all the circumstances of the case.
Employers will have to watch this space as to whether there is a positive duty to discriminate in favour of disabled persons. In the meantime they should be aware that it may be more difficult to dismiss disabled employees on the grounds of capability even if they have considered making reasonable adjustments.