THE DUTY TO MAKE REASONABLE ADJUSTMENTS EXPANDED TO
REQUIRE DISABLED EMPLOYEES TO BE TREATED MORE
FAVOURABLY THAN NON-DISABLED EMPLOYEES
Section 6 of the Disability Discrimination Act 1996 (“DDA”) requires an employer to make reasonable adjustments where any arrangements or physical features of the employer's premises place a disabled person at a substantial disadvantage in comparison with non-disabled persons.
In the new House of Lords decision in Archibald v Fife Council (Scotland)  UKHL 3, Mrs Archibald was a road sweeper who sustained an injury which rendered her unfit to do that work. Mrs Archibald was disabled within the meaning of the DDA. She was given the opportunity to apply for a substantial number of internal vacancies for basic office work but was unsuccessful as other candidates were better qualified.
The DDA gives “transferring [the disabled person] to fill an existing vacancy” as an example of a reasonable adjustment. The House of Lords held, however, that the duty may require an employer to put a disabled employee in a new post without undertaking competitive interviews, not merely to give the employee an opportunity to apply for it. This might include moving disabled employees to posts at a slightly higher grade if the position is one which a number of people could potentially fill (i.e. a post for which no one candidate is obviously the best candidate). Promotion is less likely to be a reasonable adjustment for more highly skilled work.
In Nottingham County Council v Meikle  EWCA Civ 859, Mrs Meikle suffered from a degenerative eye condition that led to her becoming sight-disabled. The employer failed to make reasonable adjustments such as providing enlarged written materials. Following a period of absence on account of her disability, her pay was reduced to half in accordance with the employer’s sick pay policy. The Court of Appeal found that the reduction in her sickness benefit was less favourable treatment for a reason related to her disability (i.e. her absence). Since the employer had failed to make reasonable adjustments which would have brought her back to work earlier the less favourable treatment could not be justified even though it was in accordance with the sick-pay policy.
Essentially, the Court found that because Mrs Meikle was disabled and would not have been absent from work if reasonable adjustments had been made, the employer could not justify reducing her sick-pay entitlement in accordance with the company policy.
What do these decisions mean for employers?
These cases emphasise that:
- the duty to make reasonable adjustments may sometimes require an employer to treat disabled employees more favourably than non-disabled persons; and
- that less favourable treatment for a reason related to a disability will be very difficult to justify unless the employer has complied with its duty to make reasonable adjustments.
What should employers do?
When considering disabled employees who can no longer do their existing jobs for alternative vacancies, employers should:
- Ensure that an assessment is carried out to identify what reasonable adjustments could be made to the disabled employee's current job;
- If no reasonable adjustments can be made to the disabled employee's current job, identify other vacancies within the business with similar grades and grades above and below;
- If the vacancy is of the same or a lower grade, provided the employee is able to do the job, offer the position to the employee;
- If the vacancy is of a slightly higher grade, the employee is capable of performing the role and no one candidate is obviously the best candidate, offer the position to him/her in preference to non-disabled candidates; and
- If the role is of a significantly higher grade, if appropriate, invite the disabled person to apply in the normal way and treat him/her in the same way as other candidates
When considering whether or not to reduce an absent disabled employee’s sickness benefit in accordance with a sick pay policy employers should:
- Ensure that all reasonable adjustments have been made to assist the disabled employee to return to work. As this may take some time, if an employer suspects that an absent employee is disabled within the meaning of the DDA, it should consider reasonable adjustments in good time before the sick pay policy dictates that sickness benefits may be reduced. Employers should ask all absent disabled employees if there are any reasonable adjustments they can make to assist a return to work before they reduce sickness benefits.
- An employer which has not made reasonable adjustments which would get the employee back to work should not reduce sickness benefit even if its sick policy provides that it may.
- This decision does not prevent an employer from dismissing an employee who is unable to work by reason of disability and who is unlikely to be recover sufficiently to do so (taking into account any reasonable adjustments) within a reasonable period. Employers must ensure, however, that a fair procedure is followed.