Law lords positive about disability discrimination decision

The
Law Lords have unanimously confirmed that there is a duty on employers to make
reasonable adjustments for disabled people if they become unable to carry out
the job they are in due to their disability.

This
duty includes considering whether it is reasonable to transfer the disabled
person to another vacant post, even if that post is at a higher grade.

The
Disability Rights Commission (DRC), which took the case to the House of Lords
on behalf of Susan Archibald, welcomed today’s decision.

Bert
Massie, chairman of the DRC, said: “This is fantastic news for disabled people
everywhere, as it confirms they have the right, where it’s reasonable, to be
transferred to a new job if they become disabled and can no longer carry out
their existing job.”

Archibald
was a roadsweeper, but became unable to walk after a rare complication after
surgery, and could not fulfil her job. It was understood by both parties that
she was disabled within the meaning of the Disability Discrimination Act
1995. 

Her
employer, Fife Council, interviewed her for a sedentary post, but chose to appoint
a more qualified individual. It then dismissed her.

The
House of Lords ruling said:

·
there is a positive duty to make reasonable adjustments – unlike sex and race
discrimination, an employer is obliged to positively discriminate in favour of
disabled people

·
contrary to the Employment Appeals Tribunal and Court of Appeal view, there was
an ‘arrangement’ which placed Archibald at a substantial disadvantage; namely,
that if she was physically unable to work as a roadsweeper, she was liable to
be dismissed

·
the positive obligation to make reasonable adjustments potentially includes
allowing disabled persons to ‘trump’ applicants for other jobs – even if the
disabled employee is not the best candidate – if the disabled employee is
suitable to do that work.

The
House of Lords has sent the case back to the tribunal to decide whether Fife
Council failed to make reasonable adjustments and/or treated Archibald less
favourably by requiring her to undergo an interview for the sedentary job
rather than offering it to her as of right.

Thanks
to Daniel Barnett for his explanation of the ruling.

www.danielbarnett.co.uk

By Michael Millar

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