The Disability Discrimination Act 1995 is likely to have implications for all businesses one way or another. From 1 October 2004, Part III of the Act which relates to those who provide goods, services and facilities to the public comes fully into force. Employers with less than 15 employees will no longer be exempt from disability discrimination claims and the existing justification defence to a claim of failing to make reasonable adjustments will also be removed.
Among other things, the Act gives protection to disabled persons in an employment context. Section 5 provides that there are two ways an employer can discriminate against an employee:
- where an employer, for a reason related to the disabled person’s disability, treats that person less favourably than he treats or would treat a person in relation to whom that reason does not apply and he cannot show that the treatment was justified;
- where an employer is under a duty to make reasonable adjustments as provided by the Act and unjustifiably fails to comply with that duty.
Section 6 of the Act provides that where any arrangements made by or on behalf of an employer or any physical features of its premises place a disabled person at a substantial disadvantage in comparison with other persons, it must take reasonable steps to prevent the arrangements or feature having that effect. “Arrangements” have to relate either to the arrangements for determining to whom employment will be offered or to “any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.” Subject to that, the term “arrangements” is not defined.
The recent House of Lords decision in the case of Archibald v Fife Council provides important clarification on the definition and scope of an employer’s duty to carry out reasonable adjustments. Mrs Archibald was employed by Fife Council as a road sweeper. Mrs Archibald had a disability which resulted in her being virtually unable to walk and therefore unable to do her job. It was accepted that Mrs Archibald had a disability within the meaning of the Act. Fife Council interviewed her for a sedentary position which was at a higher grade than the road sweeping job but chose to appoint a more qualified person. It then terminated her employment on the grounds of incapacity.
Mrs Archibald brought a complaint of disability discrimination on the basis that she should not have been required to go through the competitive interviews for the sedentary job if she could show that she was qualified and suitable. Her claim was rejected by the tribunal at first instance, and her further appeals to the Employment Appeal Tribunal and Court of Session rejected. However, the House of Lords upheld her appeal. The following are pertinent points which emerge from the decision:
- The Act entails a measure of positive discrimination in that employers are required to take steps to help disabled people which they are not required to take for others. The Act is in this respect distinguishable from sex and race discrimination legislation.
- The duty to make reasonable adjustments is triggered where an employee becomes so disabled that she can no longer meet the requirements of her job description. The reasoning for this being that there was an implied requirement that Mrs Archibald be physically fit to do her job and this amounted to a “condition” or “arrangements” of her employment within the meaning of the Act. It was also an implied arrangement of her employment that if she became physically unable to do her job she would be liable to be dismissed. When she became disabled, those “arrangements” placed her at a “substantial disadvantage” in comparison with non-disabled employees who were not at risk of being dismissed for incapacity and the Council was therefore under a duty to make reasonable adjustments to stop her suffering that effect.
- The duty to make reasonable adjustments in these circumstances could include transferring a disabled employee to an existing post at a higher grade, without requiring him or her to undergo competitive interviews.
The full text of the House of Lords’ decision is available at: http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040701/arch-1.htm