Reasonable Adjustments Equality Act
The decision in Archibald v Fife [2004] IRLR 651 has been significant in relation to the duty to make reasonable adjustments.
Introduction
Reasonable adjustment is where an employer fails to make a reasonable adjustment in an employment situation for a disabled employee. It has been eight years since the House of Lords decision in the case of Archibald v Fife Council.[1] This case was landmark which created far reaching consequences for employers and equality law. Many commentators have praised the judgment as needed[2] while other have highlighted that caution is needed in this area.[3] Some commentators have gone as far as saying the decision places a duty to discriminate in favour of disabled people.[4] This essay will seek to answer whether the decision in Archibald has had this effect on equality law. In order to determine this question, the essay will firstly discuss the context of the case and the arguments on which it turned. Second this essay will discuss if the statue prevents positive discrimination. Third this paper will determine how Archibald can be distinguished from other cases. Fourth to what extent has Archibald been followed in subsequent discrimination cases?
The Context
Reasonable adjustment is where an employer fails to make a reasonable adjustment in an employment situation. The Disability Discrimination Act (“DDA”) 1995 initially established reasonable adjustment[5], but is now clearly recast by the Equality Act (“EqA”) 2010. It imposes a duty to make all reasonable adjustments to remove that hardship. For example, by adjusting hours or duties, buying or modifying equipment or other physical characteristic of a building or allowing time off, so that a disabled person can carry out their job and not be at a significant disadvantage compared to individuals who are able bodied. Breach of this duty amounts to unlawful discrimination. The DDA 1995 applies to any act of discrimination which took place wholly before 1st October 2010. The EqA 2010 applies to any act of discrimination which took place wholly on or after 1 October 2010. The EqA also applies where an action which was unlawful discrimination prior to 1 October 2010 continues on or after that date.
Archibald v Fife Council [2004] UKHL 32
The appellant was employed as a road sweeper by the council. She had been physically fit to do her job. After having minor surgery, she became disabled. Her employer reacted by terminating her contact of employment, because her disability meant she was no longer able to perform her job. The claimant brought her claim to the employment tribunal. The tribunal held the council was justified in terminating her contract. Moreover, the tribunal held that the council was not in breach of the duty to make reasonable adjustments that was imposed on them by virtue of s.6 of the DDA 1995. The claimant’s line of argument was that the council was under a duty to make reasonable adjustment by offering her an alternative job without having her to undertake interviews for the job. This argument was rejected by the tribunal on the basis that what she was asking for entailed the council giving the claimant preferential treatment over able-bodied applicants. And s.6(7) of the DDA 1995 explicitly stated that the council was not under a duty to do this.
The decision
The claimant appealed to the House of Lords. The House of Lords were of the opinion this appeal should be allowed. The reasoning was that the tribunal had overlooked the opening words of the s.6(7), provision. This provision made clear that that it was subject to s.6 itself. The duty to make reasonable adjustments for people who were at a substantial disadvantage was included within s. 6(7). The essence of the duty was for the employer may require the council, (when making their adjustments) to treat disabled employees more favourably and to adjust any disadvantage with was brought about because of disability. The Local Government and Housing Act 1989 required any engagement under a local authority to be made on merit, this was by virtue of s.7(2)(f) of the 1989 Act. However, this provision was subject to s.5 and s.6 of the DDA 1995. Hence a disabled employee could lawfully be assigned to a different job that they would physically be able to do, provided these steps was reasonable in the circumstances.
The House of Lords decision went on to clarify that the tribunal had failed to consider whether the requirement for transfer of post to be done on merit should be adjusted in the circumstances to remove any disadvantage the claimant would face. This adjustment would prevent her from being dismissed because she was no longer able to do her job as a road sweeper. If the claimant had been transferred to a deskbound post, her disability would not make her susceptible to being dismissed on the grounds she could not do her job. The tribunal decision was flawed in its understanding of the scope of the duty under s.6 of the DDA 1995. The case was remitted back to the tribunal so they could consider whether, the council in dismissing the claimant, had discriminated against her unlawfully in terms of s.4(2)(d) of the DDA 1995 and, in particular, whether it had fulfilled its duty towards her under s.6 of the DDA 1995.
Statue: Does UK law ever permit positive discrimination?
Tom Linden and Garreth Wong are quite critical of the decision in their article Published in the New Law Journal.[6] They criticise the decision by highlighting the Lords had established that in the future a disabled employee should receive more favourable treatment than an able-bodied employee.
“The DDA does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. The duty to make adjustments may require the employer to treat a disabled person more favourably to remove the disadvantage which is attributable to the disability. This necessarily entails a measure of positive discrimination.”[7]
The DDA has now become the EqA, but the point remains. One of the worrying things this decision resonates is the judgment introduces a new duty to employ people on grounds other than merit. In order to establish if this suggestion is correct, we need to examine whether positive discrimination exists in law. The term positive discrimination means where a employer discriminates between employees which starts from a recognition that because an employee has suffered some disablement, this gap must filled by privileging the disabled applicant for that post. This type of discrimination is normally unlawful in employment law in Britain.[8]
It can be argued these distinctions should be put into context. It should be understood from the outset that the discrimination laws have been introduced to meet a specific need. For example, discrimination laws have different philosophical and practical origins. They are different solutions to the slightly different problem of discrimination. Britain is a country which lies at the forefront of dealing with issues such as; women’s rights within society and in the workplace, race discrimination, homosexuality and ageism effectively.[9] In addition, it can be argued that the Labour government has been ‘historic’ in their quest to “remove remaining unfairness and promote equality of opportunity”[10]. However, despite implementing legislation over the past three decades, disability discrimination still remains prevalent within society. Individuals who are disabled currently find that in today’s world they are placed at a significant disadvantage and continue to battle to obtain the same rights and living standards as able-bodied individuals. It can be argued the House of Lords’ use of the term “positive discrimination” is regrettable. Here in this context reasonable adjustment and its side effect of positive discrimination is just a way of removing unnecessary barriers, which aim to fill the gap and place disabled people on a level playing field. However, s.20 of the EqA 2010 does go towards illustrating how far employers should go in making these adjustments.
It can be argued that the EqA and DDA do nothing to stop an employer from treating a disabled person more favourably than an able-bodied employee. Even in Archibald, the claimant and the employer could not deny that the employer had made some reasonable adjustment prior to Archibald's dismissal. So has Archibald been a significant development in British discrimination law? In short it can be argued it is not the decision itself in Archibald but rather the Lord’s interpretation of DDA 1995 and recent EqA 2010. Which in turn can be argued is Parliament’s intention.
A good decision or caution needed?
Most of the academic dialogue around the case of Archibald centres on the former leading authority, of Jones v Post Office.[11] This earlier authority was about a mail driver suffered from late onset diabetes. He was dismissed from his driving duties. However, his employer the Post Office offered the employee a part-time post where he was permitted to work two hours within a twenty-four-hour period. The driver brought a claim on the grounds of discrimination. The Court of Appeal found in favour for the post office, arguing that the employer had come to the right decision after taking medical advice and construing a risk assessment. In coming to the decision, it was weighed in the balance that the risk of jeopardising the safety of the public outweighed Jones individual claim for discrimination.[12]
It is argued that the court in Jones found the threshold for establishing the employer’s rationalization was relatively ‘low’.[13] There is an inherent hazard, in comparing these cases too precisely. In the case of Archibald, the question central to the case was the extent to which a employer has to make reasonable adjustment. Bunbury argues this is a question which can be ‘ambiguous’ and the issue which remain ‘unclear’.[14] Nevertheless, the reasoning of the Lords does cast some useful indicators in determining question. On the other hand, the focus of Jones, considers whether there could ever be a justification for less favourable treatment.[15] This is a somewhat different presumption lacking in protection for the employee. Hence, the judgment of Archibald directs us to a different route to that of Jones, that of the safeguarding the disabled employee. Thus the case was found on quite distinct grounds and displays a shift in attitude.
In Archibald there were four cases cited by the Lords. These included: Clark v Novacold,[16] Collins v Royal National Theatre,[17] Hall v Woolston Hall,[18]and Rhys-Harper v Relaxion.[19] In Archibald Baroness Hale highlighted Clark to clarify the distinction difference between disability and other discrimination law.[20] The court used Collins to raise the argument that the courts should decide whether any adjustments made were reasonable or not.[21] The case of Hall was cited to highlight the correlation between discrimination and employment law.[22] The case of Rhys-Harper was raised to demonstrate when a duty was owed to someone already in employment.[23] All of these cases were collateral issues and none one of them were central to the ratio in Archibald.
The decision in Archibald can be summed up as: firstly, the arrangements and conditions of employment, including the job description, are ‘arrangements made by the employer’ for the principles contained in of s. 6(1) of the DDA. The terms of the employment contract fall within the employer’s duty to make reasonable adjustments. If the contact does not expressly refer to the contact, then this is to be taken to be implied into the contract by law.
Secondly, the arrangement also includes the circumstance if an employee becomes incapacitated through disability and unable to perform their job description and is place at a ‘substantial disadvantage’ in comparison to an able-bodied employee. The employer is placed under a duty to an employee that becomes disabled, which is different to when a new disabled applicant applied for a job.
Thirdly the House of Lords emphasised that the duty an employee is placed under consists of treating the disabled employee more favourably to an able-bodied employee in order to remove any disadvantage, when considering whether they should transfer an employee to a new suitable post.
Fourthly, in the case of Archibald the evidence provided by Ms. Archibald seemed to suggest one of the failures by the employer was the Council's mind-set, which differentiated between manual and clerical posts. Baroness Hale acknowledged it feel outside the employer’s responsibility to safeguard against such stereotyping: “it might be reasonable for an employer to have to take that difficulty into account when considering the transfer of a disabled worker who could no longer do that type of work.” [24] This comment suggests the court will consider factors which inconvenience the employer such as things which are not limited strictly to disability.
Fifthly, the House of Lords interpreted s. 6(7) of the DDA 1995, as “nothing in this Part is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others” qualified by the expression, “Subject to the provisions of this section”. This meant any the duty that arises to make reasonable adjustments will take importance over a duty that arises not to advantage a disabled person. The court further stated and this was also highlighted in the Article by Bunbury “when was the duty to make adjustments triggered”?[25]
The Council in this case argued that the duty to make reasonable adjustments only arises in respect of removing any barriers that may arise in the disabled employee preforming their day-to-day job. For example, adapting the work premises for a wheelchair user etc., this then allows a disabled employee for resuming their work. The council argued the duty cannot arise if the employee is totally incapacitated that they cannot perform the job at all. The House of Lords followed the statutory code published by the Disability Rights Commission, which highlights the duty arises where the employee becomes disabled and employer is expect to do what is reasonable to accommodate: “If an employee becomes disabled, or has a disability which worsens so she cannot work in the same place or under the same arrangements and there is no reasonable adjustment which would enable the employee to continue doing the current job, then she might have to be considered for any suitable alternative posts which are available.”[26] Hope LJ commented: “The making of adjustments is not an end in itself. The end is reached when the disabled person is no longer at a substantial disadvantage, in comparison with persons who are not disabled”[27]
One observation that could be argued is would the courts have imposed such a harsh burden on a private employer. In both cases of Jones and Archiblad were actions against public bodies such as the post office and local council. Question arises if this would be the case where the employer is a small business with limited funds, where imposing a duty will cause the business to fail?
Cases after Archibald
Archibald was a Scottish case; nevertheless, it turned on the interpretation of the legislation. The reasoning from the case has been followed by the courts in the United Kingdom. For instance, in the case of Talbot v WAGN[28] a train host was suffering from a condition of post-traumatic stress disorder. In this case the employee’s dismissal date was in dispute. Archibald was distinguished and it was confirmed that the duty to make reasonable adjustments was a duty that lasted the whole duration a disabled employee was employed in that post.
Moreover, in the case of Simpson v West Lothian[29] a deaf employee had resigned her job on the basis that she had suffered depression. Her argument was that her co-workers should have undertaken Disability Awareness Training, which would have made things easier for her. The employment tribunal rejected this argument on the grounds that the duty of reasonable adjustment under s.6(3) DDA 1995 only outlined training for the disabled employee. On Appeal the EAT reversed this decision on the assumption the list provided under s.6(3) of the DDA 1995 was a suggestive and not an exhaustive list to be considered.
A short time after the decision in Archibald, the case of Nottinghamshire County Council v Meikle[30] arose which revisited the question reasonable adjustment. The case of Meikle involved a teacher who became visually impaired. She requested that her employer make modest adjustments. These were never made for her. This caused Mrs Meikle to take time of work sick for stress. Mrs Meikle pay was deducted because she was absent from work over a sustained period. She resigned and brought an action for constructive dismissal on the grounds of disability discrimination because the necessary adjustments. The employment tribunal did not decide in Mrs Meikle’s favour. However, the EAT overturned this finding. The court of appeal then decided on the same lines as the EAT and concluded that the employers had failed the duty to make reasonable adjustments by not adjusting the sick pay. The Court of Appeal stated that Mrs Meikle had brought her disability to her employer attention. The employer’s failure to act caused the employee to be absent and was unlawful discrimination.
When comparing the case of Meikle, with Archibald we can see the approach set by the courts is to determine the employer has made a reasonable adjustment. If the employer has not then the employer has fallen in danger of discriminated against the disabled employee. There is no defence of justification in these circumstances, the employer is strictly liable.[31] On the other hand it can be argued if the employer has made a small adjustment, then there is no satisfactory test to establish whether the adjustment made is reasonable. Different employer may apply a different yardstick.
In two additional cases, Murphy v Slough[32] and Home Office v Collins,[33] the court decided in favour of the employers in both cases. In the first case, an offer of unpaid leave was made to a disabled teacher by a company in financial difficulty. This was held to comprise as a reasonable response to her request for adjustment for paid post-natal leave. In the second case the employer asked the employee to return to work, but the employee was unable to say if she would actually return or when she would be in a position to return. Therefore, the court held this offer to return was reasonable.
In other recent cases the Employment Appeal Tribunal (“EAT”) have ruled in the case of Southampton City College v. Randall[34] that the law in relation to reasonable adjustment did not exclude the employer being able to create a new job specifically for the disable employee. If the employee was unable to do their job this could be substituted with a new post, dependant on the size and structure of the organisation and whether this option was open to them. This seems to address the issue addressed above of where the employer is a small business with limited funds, where imposing a duty will cause the business to fail. Similarly in the case of Chief Constable of South Yorkshire Police v. Jelic[35] the same tribunal it was decided an officer with chronic anxiety syndrome could reasonably swap jobs with another officer, or alternatively take medical retirement on the grounds of chronic anxiety syndrome and then be re-employed into a civilian support role.
The ETA in the case of Walters v. Fareham College Corporation[36] established that it was not necessary to show a comparison to prove a failure to make reasonable adjustment. If the facts of the case demonstrated that someone without a disability would have been treated differently this would be sufficient to demonstrate a breach of duty. In the recent case of Secretary of State for Work and Pensions v. Alam[37] the EAT dealt with the issue of whether the employer knew the worker was disabled. The EAT decided the duty to make reasonable adjustment will not arise if the employer was unaware that the work in question was suffering from a disability and required adjustments. The courts have shown to be less helpful in cases where the disabled person has been disciplined for sickness absence. The EAT have already ruled out the possibility of disabled staff claiming sick pay for longer than allowed to non-disabled staff.
The ruling of the House of Lords in Archibald seems to be standing the test of time. The judgement suggests that there is a duty on a large employer to offer higher-grade vacant positions to a less qualified worker who has been rendered disabled, (through impairment unrelated to employment). The duty asks the employer to transfer jobs of the disabled employee where they are unable to do their manual job. This duty asks the employer to treat a disabled worker more favourably that other employees or candidates that may be more qualified and suitable for the post, in order to comply with the legal duty. This ruling remains in force.
Analysis
This case has done a lot for equality law and is likely to be remembered famously for the words of Baroness Hales who said: “to the extent that the duty to make reasonable adjustments requires it, the employer is not only permitted but obliged to treat a disabled person more favourably than others.”[38] Contrastingly it well recognised in employment law: “It is lawful to discriminate positively in favour of a disabled employee, although (subject to the duty to make reasonable adjustments) there is no obligation on an employer to do so.”[39]
Therefore employment law in the United Kingdome opposes Positive discrimination. Baroness Hales statement seems to breach this provision. The statement accepts that more favourable treatment of disabled employees as status quo and further states it should be obligatory. This leaves us with something of a paradox. Archiblad allow positive discrimination in the context of employment law jurisprudence that generally prohibits it.
Busby make reference to s.6 of the DDA 1995and tries to clarify this paradox by stating: “The real value of the duty as articulated in the present case is that it goes some way towards recognition of the social model of disability favoured by most disabled groups and activists.”[40] In Busby's own words, “It is certain societal arrangements which disable people: disability and discrimination are part of the same concept”.[41]
Using the social model, we can confer that the duty to make adjustments does not entail a duty to discriminate positively. Rather the duty to make reasonable adjustment is a duty to bridge the gap and provide equality. We can use the example where a company that only employs men employs women then they are required to provide a women’s toilet. The provision of a women’s toilet is them treating identically both men and women and not preferring one over another.
Similarly, if Mrs Archilbald did not become disabled her employment would still have been there. Once Mrs Arcibland become disabled the company, the duty to treat her equally arose. The councils’ own barriers prevented her from taking a similar scale desk job. Where the judgment can be criticised is for the use of the term positive discrimination. It is argued that there is none and only a ruling that Mrs Archiblad should be treated equally to all other existing employees.
The decision in the case of Archibald is complex and easily misread. Both s. 20 EqA 2010 and the s.6 DDA 1995 will invite further cases. The criticism that repeatedly rings true of this decision is the lack of clarity provided by the House of Lords than was hoped. It is not right to assert that the decision has re-written discrimination law in any way.
The duties to make adjustments and favour the disabled employee over able-bodied employees are not concepts the Lords invented. Moreover, neither do they reflect creative interpretation of statue. The words are literally contained in the EqA and DDA. The novelty was with Parliament in 1995, and 2010. So has Archibald been a significant development in British discrimination law? In conclusion it can be argued it is not, the decision itself in Archibald was an interpretation of DDA 1995 and recent EqA 2010. Which in turn can be argued is Parliament’s intention.
Template
If you need to make a claim for failure to make reasonable adjusments, the have a look at our disability discrimination template.
Footnotes
[1] Archibald v Fife Council [2004] UKHL 32; [2004] 4 All ER 303; 2004 SC (HL) 117; 2004 SLT 942; 2004 SCLR 971; [2004] ICR 954; [2004] IRLR 651; (2005) 82 BMLR 185; (2004) 101(31) LSG 25; (2004) 148 SJLB 826; 2004 GWD 23-505; Times, 5 July 2004; 2004 WL 1372376
[2] S. Johnstone, 'Reasonable adjustment duty may require transfer to another job', EOR 2004, 132, 24; N. Busby, 'A short step or a giant leap? Archibald v Fife Council', Edin L R 2005, 9(1), 133
[3] 'Disability Discrimination: Caution for the SME', HR Zone, 22 July 2004.
[4] T. Linden and G. Wong, 'Positive discrimination: the impact of Archibald', NLJ 2004, 154, 1173
[5] EBR Attridge Law LLP & Anor v Coleman [2009] UKEAT 0071 09 3010 (30 October 2009
[6] T. Linden and G. Wong, 'Positive discrimination: the impact of Archibald', NLJ 2004, 154, 1173.
[7] [2004] IRLR 651, HL
[8] McColgan, Discrimination Law: Text, Cases and Materials (Oxford: Hart, 2000), 137-8
[9] C. Palmer, T. Gill, K. Monaghan, G. Moon and M. Stacey, Discrimination Law Handbook (London: Legal Action Group, 2002), 119
[10] Discrimination Law Review: A Framework For Fairness : Proposals for a Single Equality Bill for Great Britain Consultation Paper – p. 6
[11] [2001] EWCA Civ 558
[12] P. Hughes, 'Disability Discrimination - Two Recent Judgments: Part 1', EmpLB 2004, 62, 2
[13] Johnstone, 'Reasonable adjustment', 26; Hughes, 'Disability Discrimination', 5
[14] Bunbury , Stephen (2009) The employer's duty to make reasonable adjustments: when is a reasonable adjustment, not reasonable? International Journal of Discrimination Law, 10 (3). pp. 111-13, p.120
[15] [2001] IRLR 384
[16] [1999] ICR 951; [1999] 2 All ER 977, CA
[17] [2004] EWCA Civ 144; [2004] 2 All ER 851, CA
[18] [2001] ICR 99; [2001] 1 WLR 225; [2000] 4 All ER 787, CA
[19] [2003] UKHL 33; [2003] ICR 867; [2003] 4 All ER 1113, HL(E)
[20] Archibald, paragraph 84
[21] Archibald, paragraph 71
[22] Archibald, paragraph 24
[23] Ibid.
[24] Archibald, paragraph 70
[25] Archibald, paragraph 38 and Bunbury, Stephen (2009) The employer's duty to make reasonable adjustments: when is a reasonable adjustment, not reasonable? International Journal of Discrimination Law, 10 (3)
[26] Archibald, paragraph 58; Disability Rights Commission, Code of Practice: Employment and Education (London: Her Majesty's Stationery Office, 2004), section 4.20
[27] Archibald, paragraph 15
[28] Talbot v WAGN Railways, 2004 WL 3246062 (EAT)
[29] Simpson v West Lothian Council EATS/0049/04
[30] 2004 IRLR 703 CA
[31] Hughes, Disability Discrimination and the Duty to Make Reasonable Adjustments: Recent Developments Industrial Law Journal (2004) 33 (4): 358-366
[32] Murphy v Slough Borough Council and another [2005] ICR 721
[33] EOR, 2005, 144, 29
[34] [2006] IRLR 18
[35] [2010] IRLR 744
[36] [2009] IRLR 991
[37] [2010] IRLR 283
[38] Archibald, paragraph 68
[39] Employment Law Service (Bristol: Jordan, 2004), 945
[40] N. Busby, 'A short step or a giant leap? Archibald v Fife Council', Edin L R 2005, 9(1), 133, at p.138
[41] Busby, 'A short step', 138. In a similar vein Malhotra speaks of 'work disability' to refer to workplaces, not employees: Malhotra, 'The Duty to Accommodate', 108
