Disability Act case ruling opens a fresh can of worms

The
Disability Discrimination Act is a difficult piece of legislation for employers
as it is, but a case ruling is set to throw them into another quandary over
unfair dismissals

The
Disability Discrimination Act (DDA) has always been a complicated piece of
legislation. And just as employers thought they were getting to grips with it,
the House of Lords handed down a judgment in the case of Archibald v Fife
Council that has redefined the scope of the duty to make reasonable adjustments
for disabled staff.

Mrs
Archibald was a road sweeper, and following a medical accident she became
unable to carry out her job. It was an implied condition of her contract that
she should at all times be
physically fit to perform her role.

The
council went to extensive lengths to find her an alternative position, but the
vacancies were sedentary in nature, and at a higher grade. It argued that if an
individual wished to apply for a post at a higher grade then it was obliged by
statute to advertise the vacancy and hold competitive interviews. Archibald
applied and was shortlisted,
but she was unsuccessful. Her case was that rather than dismissing her, the
council should have simply transferred her into the sedentary job, and she
should not have been made to go through the competitive interview process.

The
important points arising from this case are:


The implied condition relating to Archibald’s fitness to work amounted to an
"arrangement" under section 6(2)(b)
of the DDA, which had placed her at a substantial disadvantage. The fact that
her disability meant she was incapable of doing her job automatically triggered
the council’s duty to make reasonable adjustments under section 6 of the DDA.


The positive duty to make reasonable adjustments may extend to positively
discriminating in favour of disabled people. This may result in an employee
being appointed to a position without necessarily being the best candidate. In
essence, they may ‘trump’ other job applicants.

This
decision has caused concern among employers. Previously, if an employee was so
disabled that they were incapable of carrying out their job, employers were
potentially in a position to dismiss them for capability reasons, subject of
course to the duty to consider reasonable adjustments. The decision in this
case may impose a greater obligation, in that it now appears to include the
right for disabled people to ‘leapfrog’ other job applicants – even if they are
not the most qualified or suitable person for the job.

The
DDA has always advocated positive discrimination, but it has rarely been
expressed so succinctly. How far will employers be expected to go in, for
example, redundancy situations where there will normally be fewer vacancies
than candidates, and the effect of redeploying a candidate who is disabled may
mean that a more suitably-qualified person will lose their job?

The
court emphasised that it was not talking here of high-grade positions, where it
is important to make fine judgements about who would be the best candidate. On
the contrary, it referred in this case to positions that a great many people
could fill, and for which no one candidate would obviously be the best.

But
when does a job become ‘high grade’? The House of Lords emphasised that any
decision in a case such as this must depend on all the circumstances. This
reiterates the need for employers to look at each case individually rather than
to rely on blanket policies.

However,
it is not hard to see that an employer that is extremely conscious of its
responsibilities under the DDA could feel forced to overlook the best candidate
in favour of a less well-qualified disabled applicant.

This
case has potentially opened another can of DDA worms, and it appears that the
hurdles that an employer must overcome before they can rebut a claim for
disability discrimination are consistently being made more onerous. It will be
harder for employers to argue that dismissing a disabled employee was fair.

It
is also important to remember that the DDA Amendment Regulations will come into
effect on 1 October 2004,
meaning that employers will no longer be able to justify any failure to make a
reasonable adjustment for disabled employees.

By Karin Henson, associate, Wragge & Co LLP

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