Disability Discrimination Act 1995
This month we will look at several recent cases dealing with a number of issues under the Disability Discrimination Act 1995.
The first and most significant is a House of Lords decision, Archibald v Fife Council which deals with the duty to make reasonable adjustments. The Applicant in this case had been employed as a road sweeper. As a result of complications following surgery she was left unfit for ambulatory work but could manage a sedentary job. The employers had sedentary work available but this was graded higher than the Applicant’s normal job and its policy in such circumstances was that an applicant for a higher grade position must undergo a competitive interview process. The Applicant underwent a number of interviews but was unsuccessful and eventually was dismissed because she could not carry out her normal duties. She brought proceedings under the DDA alleging a failure to make reasonable adjustments (this is discrimination under s.5(2)) and specifically that her employers failed to appoint her to a sedentary role without interview.
The case failed at Tribunal and at the EAT and before the Court of Session (Scottish Court of Appeal) but succeeded in the House of Lords to the extent that the Lords decided that the appointment of an employee to a higher grade without interview was an adjustment which an employer should consider and which it might be reasonable for an employer to take. The case has therefore been sent back to the Tribunal to determine whether such step was reasonable on the facts of the case. Whilst the ultimate outcome of the case is awaited, the decision indicates that the duty to make reasonable adjustments is capable of including transfer to another available job even at a higher grade.
The Lords referred to s.6(3)(c) which cites transfer to an existing vacancy as an adjustment to be considered. The lower courts had taken the view that to transfer to a higher graded job bypassing the normal competitive interview process was treating a disabled person more favourably which s.6(7) says is not a requirement of the Act. However, the Lords pointed out that s.6(7) is expressly subject to the general duty to make adjustments in s.6 so that, in effect, s.6(7) is overridden and there is a duty upon an employer to treat a disabled person more favourably if that is reasonably necessary for the purposes of complying with the general duty to make reasonable adjustments.
Presumably, the employers will argue at the new Tribunal hearing, that their decision not to appoint straight to the higher grade, bypassing their normal procedures, can be justified and is not therefore discriminatory but the point of principle which emerges from the Lords, is that employers will need to consider the possibility of adjustments to their usual appointment procedures in the case of employees with a disability to such a degree that, in effect, they are likely to be treating a disabled employee more favourably.
This is clearly a potentially very significant decision for both employers and employees and we think it is fair to say that it is a significant step further in protecting disabled employees than the law was previously thought to require.
Another important decision, this time by the Court of Appeal, is Nottinghamshire County Council v Meikle which considered a number of issues relating to the Act, one of which was whether the duty to make adjustments extended to the employers’ sick pay scheme (which provided for full pay for 100 days absence followed by half pay thereafter). The case involved a teacher with a visual impairment who had requested various modifications for her work to overcome her impairment. These were not provided and the teacher became sick and went absent from work for a significant period in excess of 100 days resulting in the reduction of her sick pay. The employee then resigned when there was a continued failure to implement the modifications she had requested (one of the other issues determined in the case was that a constructive dismissal was a dismissal for the purposes of the DDA).
S.6(11) DDA excludes the duty to make reasonable adjustments from occupational pension and insurance schemes and the Tribunal first hearing the case had assimilated an employers’ sick pay scheme to such arrangements and therefore exempted from that duty. The Court of Appeal rejected that interpretation and held that a sick pay scheme is not within the s.6(11) exemption and is therefore subject to the general duty to make adjustments and that on the facts of the case an adjustment to the sick pay provision to benefit the employee would be appropriate because, had the employers implemented the modifications to her job requested by the employee, she would have been unlikely to have had a period of absence from work in excess of 100 days. Generally therefore, subject to the issue of justification, it is clear that an employer might need to reflect upon whether it is required to adjust any contractual sick pay scheme in the case of an employee with a disability under the Act.
A less controversial case is that of Swift v Chief Constable of Wiltshire where the EAT clarified what is required for there to be a substantial adverse effect which is ‘likely to recur’ (this is one of the elements required to give rise to a disability under the Act). The EAT stressed that it is the adverse effect arising from the impairment rather than the impairment itself which must be likely to recur and that ‘likely’ means more probable than not. Here the employee had a psychiatric condition which resulted in memory and concentration impairment. She returned to work but then suffered from panic attacks which were not the same as the impairment to her memory and concentration from which she had suffered. The employee was held not to be a disabled person under the Act and the EAT upheld that decision on the reasoning set out above.
Finally, in South East Sheffield CAB v Grayson, the EAT determined that voluntary Citizens Advice Bureau workers are not employees for the purposes of the DDA. This decision is probably however of greater significance in relation to worker status in that it turned on the legal test for determining the existence of a contract of employment, and in particular whether there was any mutuality of obligation between the CAB and the volunteer involved. The EAT thought that there was no obligation on the part of volunteers to work and hence no contract of employment.
The regular reports of cases on the Disability Discrimination Act seems to confirm that this is a frequently ventilated area of law where the Tribunals are trying to negotiate their way through the complex and often very technical provisions of the Act which consequently can be something of a minefield for employers in particular.
If you would like further information please do not hesitate to contact Kevin McKernan, Head of Employment Unit at Crutes Law Firm.
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