The House of Lords confirmed that transferring a disabled employee from a post she could no longer do to one she could do might be a reasonable adjustment an employer was obliged to make. This might include waiving a requirement to undertake competitive interviews for a higher grade job which the employee would be able to perform.
House of Lords, 2004. Full judgment www.bailii.org/uk/cases/UKHL/2004/32.html.
The claimant was a road sweeper. As a result of complications from a spinal anaesthetic she became unable to walk. She was initially confined to a wheelchair and later was only able to walk with the assistance of sticks. Steps were taken to explore suitable alternative employment in other departments. Over some months she applied unsuccessfully for over 100 posts. However, she could not meet their physical demands or environmental constraints. Also, since the lowest grade office posts all had a basic salary marginally higher than her current salary, Council policy required that she undertake competitive interviews. Eventually the Council took the view that the redeployment procedure had been exhausted and she was dismissed.
The claimant argued that she should not have been made to compete for alternative employment if she could show she was able to perform the duties and responsibilities of the alternative post, and that the employers had failed to make a reasonable adjustment under s.6 DDA (later s.4A).
The lower courts held for various reasons that this could not in principle be a breach of the reasonable adjustment duty.
Held by House of Lords: the lower courts had been wrong to dismiss her claim, and the case was remitted to the employment tribunal to decide whether the reasonable adjustment duty had been breached.
(1) The steps an employer might have to take did include transferring her to another job. This was expressly contemplated in s.6(3)(c) DDA and in the Code of Practice. It was true that for the employer’s duty to apply, the claimant had to be placed at a substantial disadvantage compared with a non-disabled person by the employer’s “arrangements”. But “arrangements” included the job description she could no longer fulfil and the liability to be dismissed if one did not fulfil it. Since these arrangements made her liable for dismissal, they placed her at a disadvantage to non-disabled people who could still meet their job description. (There were differences in the detailed analysis by individual Lords of Appeal. However the Court of Appeal in Smith v Churchills Stairlifts, 2005, said there was not a significant difference in approach between them.)
(2) The steps an employer might have to take also included transferring her without competitive interviews from a post she could no longer do to a post she could do. A transfer could be upwards, as well as sideways or downwards.
(3) S.6(7) expressly contemplated that under the reasonable adjustment duty a disabled person might have to be treated more favourably than a non-disabled person.