Reasonable adjustment case sent back to tribunal: Archibald was a road sweeper for Fife Council. After surgery complications, she became virtually unable to walk. She was accepted as disabled for the purposes of Disability Discrimination Act (DDA)1995.
She unsuccessfully applied for sedentary office jobs with the council and was dismissed for incapacity. Archibald’s disability discrimination claim was unsuccessful at the employment tribunal, EAT and Court of Session, and she appealed to the House of Lords.
It allowed her appeal. It was held that the terms, conditions and arrangements relating to the essential functions of Archibald’s employment were “made by the employer” within the meaning of the DDA. As a result, Archibald was disadvantaged compared with staff who were not disabled, as she was at risk of dismissal.
A positive duty to make reasonable adjustments under section 6 of the DDA was therefore triggered. It may have been reasonable for the council to automatically transfer her to an existing post at a slightly higher grade despite not necessarily being the best person for the job.
This goes beyond what was previously considered a “reasonable adjustment” under the DDA. It is more likely to be reasonable where the post could be filled by many, and for which no one candidate may obviously be the best.
The case has been remitted back to a tribunal to consider whether it was reasonable for the council to carry out that adjustment in this case.