Come on, be reasonable

Employers have a duty to do all they can to avoid working arrangements or conditions that would put a disabled person at a disadvantage compared with those who are not disabled. It has been commonly accepted that the legal requirement for the employer to take “reasonable steps” to ensure this include making adjustments to the premises and equipment, altering hours of work, extra training and more supervision.

But a recent decision in the House of Lords means employers may have to do even more.

The case involved a Mrs Archibald, a road sweeper for Fife council. Following surgery, she was virtually unable to walk and so could no longer work as a road sweeper. Fife arranged for her to take a number of courses to equip her with the skills for a desk job and she applied for more than 100 positions.

She was automatically short-listed for competitive interviews, but failed to secure any of them despite an assessment showing that she was capable of doing desk-based work. Eventually, she was dismissed on grounds of incapacity.

The House of Lords held that the council owed Archibald a duty to make reasonable adjustments and that duty was triggered when she became disabled and could no longer meet the requirements of her job description as a road sweeper.

Even though the council had made some adjustments, the Lords ruled that the making of adjustments is not an end in itself; the end is reached when the disabled person is no longer at a substantial disadvantage at work compared with people who are not disabled.

A crucial question the Lords remitted back to the tribunal was whether the council should have simply transferred her to a desk position for which she was suitable, or at least dispensed with competitive recruitment. The 1995 Disability Discrimination Act gives examples of the adjustments employers may make and these include transferring someone into an existing vacancy.

The Lords considered that the word “transfer” did not only mean transferring the employee into a post at the same grade, but that this could also mean an upwards, sideways or downwards move as long as it was a position the employee was capable of performing. The effect of this is that employers must consider disabled staff for all positions they are capable of performing, regardless of what grade that position is. The fact that this discriminates against those that are not disabled is not relevant.

In the Archibald case it would appear that because of the size of the council and the number of alternative positions that Archibald was capable of performing, to comply with its obligation the council should have automatically transferred her to an alternative position rather than going through competitive interviews. It will be interesting to see how the tribunal interprets the facts when this matter is re-heard.