Archibald v Fife Council

The House of Lords held that the duty to make reasonable adjustments under section 6 of the Disability Discrimination Act 1995 can be triggered where an employee becomes incapable of performing the essential functions of her job. The employer may be required, if reasonable in all the circumstances, to take steps such as transferring the employee to a suitable existing vacancy (which may be at a higher grade) in order to prevent the disabled person being placed at a substantial disadvantage by the arrangements of employment. The interpretation of section 6(7) is qualified by section 6 itself so that the duty may require treating a disabled person more favourably when necessary to remove the disadvantage. The employment tribunal had misconstrued section 6 and failed to consider whether adjustments (including dispensing with competitive interview requirements) would have been reasonable; the House therefore allowed the appeal and remitted the matter to the Employment Tribunal for further factual and evaluative inquiry.

Background and facts:

• Mrs Archibald was employed as a road sweeper. After a complication in minor surgery she became virtually unable to walk and could no longer perform the main functions of that job. She was assessed as suitable for sedentary office work and undertook training. She applied for many internal vacancies (mostly on a higher pay grade) but was required by the employer's redeployment policy to undergo competitive interviews for higher graded posts and obtained none. After redeployment efforts were exhausted she was dismissed for incapacity on 12 March 2001.

Procedural posture and relief sought:

• She brought claims to an Employment Tribunal for unfair dismissal and disability discrimination under the Disability Discrimination Act 1995. The tribunal found dismissal was within the band of reasonable responses and dismissed the unfair dismissal claim (not appealed). Its treatment of the discrimination claim was that the employer had not breached any section 6 duty because section 6(7) precluded treating her more favourably by dispensing with competitive interviews. Her appeals to the Employment Appeal Tribunal and the Court of Session (Extra Division) were unsuccessful. She appealed to the House of Lords seeking a declaration that the council had failed to make reasonable adjustments and so had unlawfully discriminated.

Issues framed:

• Whether an employer's duty under section 6 can be engaged where an employee becomes wholly unable to perform the essential functions of the job she holds.
• Whether the duty can require an employer to transfer the disabled employee to a suitable existing vacancy, even if that is at a higher grade, and whether that could include dispensing with a requirement for competitive interviews.
• The relationship between section 6 and section 5 (justification), and the effect of section 6(7) and the local authority merit principle (section 7 of the Local Government and Housing Act 1989).

Court's reasoning and outcome:

• The House analysed the interplay of sections 4, 5 and 6 of the 1995 Act and relevant guidance in the statutory Code of Practice. It concluded that the contractual term or arrangement making an employee liable to dismissal when unable to perform the essential functions of the post is itself an "arrangement" for the purposes of section 6(1) and places the disabled employee at a substantial disadvantage versus non-disabled comparators (those able to do the job and not at risk of dismissal). Section 6(3)(c) (transfer to fill an existing vacancy) is an express example of an adjustment which may be required and may include transfer to posts at a higher grade. The opening words of section 6(7) are subject to section 6 itself, so a duty to make adjustments may require treating a disabled person more favourably where this is reasonable to remove the disadvantage.
• The tribunal had erred in law by misconstruing section 6(7) and by not addressing whether it would have been reasonable for the council to transfer Mrs Archibald or to dispense with competitive interviews in her particular circumstances. The House allowed the appeal and remitted the case to the Employment Tribunal to determine, on the established facts and the council's redeployment policy, whether the council had fulfilled its section 6 duty.

Appeal allowed and remitted to the Employment Tribunal. The House held that section 6 of the Disability Discrimination Act 1995 can be engaged where an employee becomes incapable of performing the essential functions of her job and that the employer's duty may include reasonable steps such as transfer to a suitable existing vacancy (even at a higher grade) and, where justified by reasonableness, dispensing with normal competitive procedures. The employment tribunal had misinterpreted section 6(7) and failed to assess reasonableness; further tribunal consideration was therefore required.

Employment Tribunal: dismissed the discrimination complaint (unfair dismissal element not appealed). Employment Appeal Tribunal: appeal dismissed. Court of Session (Extra Division): appeal dismissed ([2004] IRLR 197). House of Lords: appeal allowed ([2004] UKHL 32) and remitted to the Employment Tribunal.