Err on the side of caution with DDA adjustments

Employers
may make reasonable adjustments under the Disability Discrimination Act for all
employees

Can
an employer comply with the duty to make reasonable adjustments under the
Disability Discrimination Act while at the same time being unaware that the
employee is disabled? This intriguing question arose in British Gas Services v
McCaull, 2000, IRLR 60.

McCaull
was employed by British Gas Services as a service engineer servicing central
heating systems at customers’ homes. As part of his duties, he was required to
drive a van. In November 1996, he blacked out after an epileptic fit and had an
accident. Luckily, McCaull sustained only minor injuries but the van was a
write-off.

After
a medical examination, British Gas was advised that McCaull could not continue
to drive and should not work without supervision or work with electrical
equipment. British Gas offered McCaull alternative employment as a customer
service adviser – although he does not appear to have been given relevant
information about how much he would be paid and whether he would be entitled to
overtime pay. As it turned out, the job involved a reduction in salary of 23-30
per cent.

McCaull
turned down the job and, because there was no other suitable alternative
employment available, his employment was terminated. McCaull subsequently
complained of unfair dismissal and unlawful discrimination for reasons relating
to his disability.

The
employment tribunal upheld his complaint. It found British Gas had treated him
less favourably than it would have treated someone who was not disabled because
it had not supplied him with the relevant information about the alternative
job. It also found British Gas had not justified McCaull’s dismissal in that it
had failed

to
comply with the duty to make reasonable adjustments because it had not regarded
McCaull as disabled. It also upheld McCaull’s complaint of unfair dismissal on
the grounds that it was unreasonable to offer him a job that involved a
significant reduction in salary.

EAT
decision

Allowing
the appeal, the EAT ruled:

– The
tribunal was not entitled to conclude that the employee had suffered less
favourable treatment by reason of his disability when the employer failed to
provide him with the correct information about an alternative job offer because
he did not rely on this as a ground of complaint at the tribunal hearing. The
tribunal should also have asked whether the failure related to the employee’s
disability or was for some other reason.

– The
tribunal was wrong in law in ruling that an employer who did not believe an
employee to be disabled had failed to comply with the duty to make reasonable
adjustments pursuant to section 6 of the Disability Discrimination Act (see key
points).

– The
tribunal also came to the wrong conclusion on the issue of unfair dismissal.
Previous case law had established that it is not unreasonable for an employer
to offer an alternative job which involves a reduction in pay.

Key
points

– An
employer may comply with the duty to make reasonable adjustments under Section
6 of the Disability Discrimination Act even if it does not realise that the
employee is disabled.

– The
crucial issue is whether the employer has considered the possibility of
alternative employment or other changes to the job in compliance with the
statutory requirements and the factors referred to in section 6(4) of the DDA
such as the practicability and cost of the adjustment.

– However,
it will normally be vital to know the nature and extent of the employee’s
disability to make a meaningful appraisal of what the employee is able to do
and the practicalities of changing the existing job or offering alternative
employment.

Anthony
Korn is a barrister at 199 Strand Chambers

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