Redeployment procedures need to be adjusted to accommodate the requirements of the DDA.
The Disability Discrimination Act 1995 (DDA) is now comfortably into its second decade, but for employers and employees alike, there remain certain grey areas about their obligations and the protections that are available.
A prescriptive route map for all situations is unrealistic and employers are, quite rightly, waiting for case law guidance.
The Disability Rights Commission (DRC), whose responsibilities have now been subsumed by the Equality and Human Rights Commission (EHRC), had a strong track record of supporting cases that clarified the general application of the law. The commission also provided help for employers in understanding and implementing the DDA’s statutory code of practice.
One area which really needs further work – and one which it is hoped that the EHRC will focus on – is managing changes to existing roles and redeployment for disabled employees.
‘Transferring’ to fill an existing vacancy extends to considerations of potential promotion and not merely posts of a similar or lesser level. But this is insufficiently clear in the guidance.
The House of Lords has said that it will be necessary to consider adjustments to redeployment procedures where an employee may be required to participate in a competitive interview process before any appointment can be made.
Employers will need to consider whether it is reasonable to transfer an employee into a new position. However, it is possible to take into account the likely suitability and nature of the new role, and there is no obligation to promote to a position where there is no potential suitability.
Case law also indicates that while there cannot be an obligation on an employer to create a post (which is not otherwise necessary) specifically to retain a disabled person, there may be circumstances in which it would be reasonable to devise an entirely new job for a disabled employee.
The extremes of the spectrum vary from there being no obligation to promote an administrative assistant with limited experience to become department head to redesigning a job specification during a period of reorganisation and to prioritise that role for the disabled employee.
Additions to the guidance would be helpful, both to draw further attention to these elements, and to indicate factors or examples of how to bridge the gap in between. For example, if a role is demonstrably time critical, with limited suitable candidates in the market, it may well be acceptable for an employer to move quickly to appoint to a permanent role, notwithstanding a disabled employee’s potential suitability after, say, six months of training.
Reasonable factors include: the financial costs that would be incurred in taking the step and the level of disruption to other activities of the employer the extent of its financial and other resources and the availability to the employer of financial or other assistance to take the required step.
The latter refers particularly to potential support through the Access to Work scheme, which can fund up to 100% of the adjustment costs incurred as a result of employing a disabled person.
Hopefully, the EHRC will continue to build on the fine traditions of the DRC in seeking to strike a reasonable balance and in explaining practically how that could or should be done.
Robert Davies, Partner, Dundas & Wilson
- Employers will be well aware of their obligation to make reasonable adjustments in cases where a provision, criterion or practice places a disabled person at a substantial disadvantage.
- An employer has to take reasonable steps to prevent that disadvantage, and there is no defence of justification for failure to comply.
- The DDA provides non-exhaustive lists of steps to be considered, but there are still many grey areas for employers.