The employer expected salesmen of radiator cabinets to show prospective customers the full-sized cabinet. A disabled person had his place on a training course for the job withdrawn, because he could not lift and carry the cabinets. Most of the population would have difficulty lifting them. The Court of Appeal held that he was still placed at a disadvantage compared with non-disabled people, so the reasonable adjustment duty applied. The correct comparison was with others admitted to the course.
The court also confirmed that an objective test applies to the reasonable adjustment duty. It is for the tribunal to decide what it is reasonable for the employer to have to do.
The tribunal was entitled to find that allowing a trial period using alternative sales methods would have been a reasonable adjustment.
Smith v Churchills Stairlifts. Court of Appeal, 2005. Full judgment: www.bailii.org/ew/cases/EWCA/Civ/2005/1220.html.
Facts
The employer decided to diversify into manufacture, sale and installation of radiator cabinets. They needed to recruit a national sales force for this. For commercial reasons it was decided that the sales aid to be used by their salesmen would be a full-sized sample radiator cabinet. The company considered that this would result in more leads ripening into actual sales.
The claimant was disabled within the DDA due to lumbar spondylosis. He used a walking stick outdoors and if he walked more than 50 metres he had to stop and rest. It also meant that he was unable to lift and carry heavy objects. He got though the interview stage, but when the employer subsequently decided that salesmen would need to carry a full size cabinet, his place on a training course for the post was withdrawn on the ground that he could not carry the cabinet.
The claimant suggested that he might work on a commission-only basis for a trial period, using an alternative sales method which would dispense with the need for full-sized samples. The employer was not willing to agree to this.
On the training course there were seven candidates. They were required to carry the sample cabinets as part of a role play. One candidate could not carry the cabinet and left the course. The remaining six passed the course and began employment as salesmen.
Employment tribunal decision
In deciding whether the reasonable adjustment duty applied, the tribunal had to consider whether the employer’s arrangements – including the requirement to carry the cabinet – placed the claimant at a substantial disadvantage in comparison with persons who are not disabled.
The employment tribunal decided that in looking at whether the claimant was at a disadvantage, the correct comparison was with the population generally who do not have any disability. The tribunal found that due to the weight and size of the cabinet, a majority of the population would be likely to have difficulty carrying it any distance and lifting it into a car, at least without the risk of personal injury. Accordingly, the claimant was not placed at a substantial disadvantage compared with the population generally who do not have a disability.
The tribunal also held that the employer was not liable for disability-related discrimination, because it could rely on the ‘justification’ defence for its withdrawal of a place on the training course. In accordance with Jones v Post Office, the tribunal was not to substitute its own view for that of the employer; but to decide whether the employer’s decision fell within the range of reasonable responses to the known facts.
Court of Appeal decision
What were the ‘arrangements’?
It was agreed that the employer’s ‘arrangements’ included the requirement to carry a full-sized radiator cabinet. The Court of Appeal agreed with the claimant’s argument that the relevant ‘arrangments’ also included the fact that the claimant was liable to have the offer of a place on the training course withdrawn if he was, or was believed to be, unable to carry the cabinet.
As against whom must the claimant be at a disadvantage?
In light of the speeches in the House of Lords decision of Archibald, decided after the employment tribunal decision, the proper comparator was readily identified by reference to the disadvantage caused by the relevant arrangements. The employment tribunal had been mistaken in comparing the claimant’s ability to lift the cabinet with that of the population generally.
Even if the only relevant arrangement had been the requirement to carry a full-sized radiator cabinet, the proper comparators would have been the six successful candidates who were subject to the requirement but not disadvantaged by it because they were not rejected as a result. If (as the Court of Appeal had held) the relevant arrangements included susceptibility to withdrawal of the offer of a place on the course, the proper comparators were the nine (?) people who were admitted to the course.
Thus the arrangements did indeed place the claimant at a substantial disadvantage in comparison with persons who were not disabled.
Reasonableness and justification
The employment tribunal had held that if the reasonable adjustment duty did arise, then it would have been a reasonable adjustment for the employer to allow the claimant to make sales by different methods on a trial basis. The employer argued that it was perverse for the tribunal to reach that decision whilst also finding that the employer was ‘justified’ in withdrawing the place on the course because of the evidence of its commercial reasons for insisting that the salesmen use full-size cabinets.
The Court of Appeal disagreed. It said the test for reasonable adjustments was an objective one. “Whereas in relation to [the reasonable adjustment duty] it is ultimately the view of the Employment Tribunal of what is reasonable that matters, the position is otherwise in relation to [the justification defence]”.
For the justification defence, the employer’s decision may be material and substantial even though the tribunal themselves would have come to a different conclusion (Jones v Post Office). A tribunal may accept that an employer held a view that was genuine, relevant to the circumstances and provided a more than insignificant reason for the treatment in question. In the absence of a duty to make reasonable adjustments, this may satisfy the requirements of the justification defence.
However, the fact that an employer held such a view does not prevent a tribunal from finding that it would nevertheless be reasonable for the employer to make an adjustment. Moreover, if the tribunal concludes that there was a duty to make an adjustment and the employer has failed to comply with this duty, the tribunal must consider whether the less favourable treatment would have been justified had the employer complied with the duty.
Accordingly, the tribunal was entitled to find that allowing a trial period with alternative sales methods would have been a reasonable adjustment.
Result
The result of the Court of Appeal’s decision was that the employer had failed to make reasonable adjustments. The case was remitted to the tribunal to decide on remedy.
My comment
The case was decided under the rules applicable before October 2004, but the principles set out in the case should apply equally to the amended rules currently in force.
This Court of Appeal decision seems to contradict some later Employment Appeal Tribunal decisions which thought a trial period could not be a reasonable adjustment: Reasonable adjustment rules: Employment>Trials.
