Veitch Penny LLP - Exeter | Crediton, Devon

Case

Archibald v Fife Council

Issues

(1) Disability Discrimination
(2) Duty to make reasonable adjustment
(3) Justification

Facts

Susan Archibald had been employed by the Council as a Road Sweeper from May 1997 until March 2001. Her work involved refuse collection, cleaning of public toilets, road sweeping etc. As part of a minor surgical procedure in April 1999, she was given a spinal anaesthetic that led to complications, leaving Ms Archibald unable to walk. Initially she was confined to a wheelchair and later was only able to walk with the assistance of a stick.

The Council obtained medical advice about Ms Archibald’s likely prospects of returning to work. It also looked into the availability of suitable alternative employment in other departments. Despite making almost 100 applications for alternative posts, she was unsuccessful because she was unable to meet the physical demands of the post or the environmental constraints in which they were to be performed. The applications were made in accordance with the Council’s redeployment policy, which required her to undertake competitive interviews for alternative. In March 2001, the employer finally took the view that the alternative employment route had been exhausted. They took the decision to dismiss her given the length of her absence and the advice that had indicated she would be unable to return to work as a Road Sweeper in the foreseeable future.

Ms Archibald made a complaint as she had been discriminated against on grounds of her disability. She argued that she should not have been made to compete for alternative employment given that she was able to show that she was able to undertake the alternative posts in question. She also argued that by is actions the Council had failed to comply with its duty of reasonable adjustment under Section 6 of the Disability Discrimination Act.

At first instance, the Tribunal dismissed Ms Archibald’s complaint finding that the employer did not fail to comply with the duty of reasonable adjustment.

Appeals were then submitted into the Employment Appeal Tribunal (EAT) and the Court of Session. The appeals were dismissed on both occasions and the matter was appealed to the House of Lords.

Decision

The appeal would be allowed. The House of Lords found that the Tribunal’s decision had been incorrect. It had been wrong to find the Council had complied with its duty of reasonable adjustment under Section 6 when they dismissed Ms Archibald because she was able to do another job within the organisation. The Employment Tribunal had also been wrong in rejecting Miss Archibald’s allegation that she should not have been required to go through competitive interviews.

The House of Lords pointed out that the Disability Discrimination Act is different from the Sex Discrimination and Race Relations Acts as employers were required to take steps to help disabled people which they are not required to do under the other legislation (which expects all employees to be treated the same way). The Disability Discrimination Act imposes a duty to make adjustments which require the employer to treat the disabled person more favourably to remove the disadvantage attributable to the disability. There is a degree of positive discrimination required.

The duty to make an adjustment was triggered when Ms Archibald became so disabled she could not meet the requirements of her job description. The Council’s arrangements had placed Ms Archibald at a substantial disadvantage. The steps which the Council should have considered included transferring her to another job without competitive interview and moving her into a post at a slightly higher grade. The exact nature of the steps which are reasonable will depend upon the circumstances of each case.

Comments

This is the first case in which the House of Lords has had a chance to consider the substantive provisions of the Disability Discrimination Act. The effect of the decision is that it widens the potential scope of requirements placed upon employers. The Act provides a duty to make an adjustments which is triggered when an employer’s arrangements placed a disabled person in question at a substantial disadvantage in comparison to those who are not disabled. This duty now has a very wide meaning and the term “arrangements” now appear to encompass almost anything that places a disabled person at a disadvantage. It also extends the definition of “transfer” for the purposes of the Act, and the scope of reasonable adjustment is extended to encompass the transfer the disabled person into an alternative post (rather than just giving the disabled person the opportunity to apply for it).

As always, the control mechanism is reasonableness and therefore an employer has to do no more than is reasonable in like of the circumstances of the case. This is an objective test of what a reasonable employer ought to do, which has now been made even more rigorous by the removal of the “justification defence” (where employers could escape liability by arguing that the less favourable treatment in question was justifiable) on 1st October 2004.