Facts
Milorad Jelic was a police constable with South Yorkshire Police who developed chronic anxiety syndrome. He had periods of sick leave between 2002 and 2004 for stress-related illness. South Yorkshire Police’s occupational health (OH) adviser said he should return to work on reduced hours in a non-confrontational environment.
He was assigned to the Safer Neighbourhood Unit and worked there successfully. In 2007, OH advised that Jelic’s condition was unlikely to improve before his retirement. South Yorkshire Police began to consider medical retirement.
A medical report recommended the adjustment of limited public contact in a non-confrontational role. In April 2008, the chief constable approved Jelic’s retirement from the police service with an ill-health pension.
Jelic brought a claim for failure to make reasonable adjustments.
Decision
Jelic claimed he should either have been deployed into a non-client-facing officer role, permitted to continue working with a non-client-facing restriction, or transferred into a police staff role.
There was no dispute that South Yorkshire Police had applied a provision, criterion or practice, which was the requirement that all police officers working in the Safer Neighbourhood Unit should be able to carry out duties involving face-to-face interaction with the public. That requirement placed Jelic at a substantial disadvantage. South Yorkshire Police was therefore under a duty to make reasonable adjustments.
That duty arose for fresh consideration in 2007, triggered by the OH report that Jelic’s condition was unlikely to change before retirement, and because the role of police officers in the Safer Neighbourhood Unit was moving more towards face-to-face interaction with the public.
The tribunal found it would not have been reasonable to maintain the status quo as the role of the Safer Neighbourhood Unit was changing. But it would have been reasonable for South Yorkshire Police to have carried out a search for non-client-facing police officer roles.
The tribunal identified another officer’s position and found South Yorkshire Police could have moved that officer to another role to allow Jelic to take over his role. The tribunal also found that it would have been a reasonable adjustment to offer Jelic medical retirement and subsequent employment in a civilian role.
South Yorkshire Police appealed to the Employment Appeal Tribunal (EAT), which upheld the tribunal’s decision in respect of the adjustment to move Jelic to another role. The EAT held the tribunal was not precluded from holding that it would be a reasonable adjustment to create a new job for a disabled employee.
In this case, no consideration at all was given to reasonable adjustments being made once the role of the Safer Neighbourhood Unit officer changed. South Yorkshire Police also decided that only transfers to vacant posts would be considered, and failed to consult Jelic about what adjustments could be made.
But the EAT found that the tribunal’s reasoning was inadequate in respect of its finding that it would have been a reasonable adjustment to offer Jelic medical retirement and subsequent employment in a civilian role.
The EAT therefore upheld the appeal.
Implications
It is established law that the duty to make reasonable adjustments may include transferring an employee to fill an existing vacancy. In Archibald v Fife County Council, the House of Lords held that the duty to make reasonable adjustments could include transferring a disabled employee from a post she could no longer do to one she could do, without the need for competitive interviews.
This case goes further in saying that in certain circumstances it may be a reasonable adjustment to move a disabled employee to a job that is not vacant. The tribunal was clearly influenced by the nature of the employment: not every employer will be in a position to require another employee to move jobs to accommodate a disabled colleague.
The case does confirm, however, that if a suitable role can be identified, the employer should at the very least be exploring options for redeployment and consulting with the employees concerned where the alternative is dismissal.
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Mary Clarke, employment partner, DLA Piper
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