Veitch Penny LLP - Exeter | Crediton, Devon

Case

Southampton City College v Randall
Employment Appeal Tribunal - (07 November 2005)

Issues

(1) Disability Discrimination Act 1995
(2) Reasonable adjustments
(3) Assessment of need

Facts

Mr Randall was a lecturer for the College having started employment with the College from 1st September 1976. While most of his teaching was done in a classroom setting, he was required to work for about 2 hours per week in the machine shop which was designed to replicate a factory floor. It had high levels of background noise and the lecturer needed to shout. He started to experience occasional problems with his voice. In November 2000, the Occupational Health Support Department suggested that his lecture time be reduced. The College did not implement the recommendation or disclose it to Mr Randall. In 2002, Mr Randall was diagnosed as suffering from functional dysphonia, a voice disorder and a disability under the Disability Discrimination Act. Despite this diagnosis, no review of his work was undertaken and he was given a full teaching timetable. In October 2002 his voice broke down and he went on sick leave although he was otherwise able to work. He asked to return to work, but his line manager opposed that.

In December 2002 Mr Randall was informed that the College was to undertake a restructuring process. He applied for the post of co-ordinating lecturer in manufacturing which was substantially the same position he had previously undertaken. He was invited to a meeting where he was offered either redundancy or the opportunity to apply for ill health retirement.

Mr Randall made a complaint to the Tribunal that he had been discriminated against contrary to Section 5(2) of the Disability Discrimination Act and that he had been constructively unfairly dismissed.

At the first instance the Tribunal found that the College took no steps to consider reasonable adjustments for Mr Randall. It found that the College was in breach of the Disciplinary Discrimination Act and that Randall had been unfairly dismissed.

The College appealed the Tribunal’s decision alleging (1) the Tribunal had been incorrect to suggest that the College had a duty to create a new job for Mr Randall; (2) there was no evidence for the Tribunal to suggest that the particular adjustment of voice amplification would have been effective.

Decision

The Employment Tribunal (EAT) found that (1) on the facts of this particular case, the college did have a duty to “devise a job which would take account of the effect of [the Claimant’s] disability” and accordingly the Tribunal was not incorrect in extending the duty of reasonable adjustment in this way. The Disability Discrimination Act does not preclude the creation of a new post in substitution for an existing one from being a reasonable adjustment; and (2) that the Employment Tribunal was not incorrect in finding that the employers should have considered the particular adjustment of voice amplification as a reasonable adjustment notwithstanding there was no evidence before the Tribunal to suggest it would have been effective. The Tribunal was providing an example of the sort of reasonable adjustment which should have been considered.

The EAT confirmed that the College did not take any steps to consider any reasonable adjustments. Accordingly, the College's appeal was dismissed.

Comments

In this case, the EAT has stressed the importance of employers undertaking proper assessment of what is needed on an employee by employee basis. The duty to make reasonable adjustments cannot be fulfilled if no assessment of what is needed to eliminate the disadvantage is made.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it