Archibald (Appellant) v. Fife Council (Respondents) (Scotland)

Under the Disability Discrimination Act 1995, the reasonable-adjustment duty may arise when an employee becomes unable through disability to perform the essential functions of her existing job. The relevant arrangements can include the job description and the contractual liability to dismissal for incapacity.

The employer must take reasonable steps to remove the resulting substantial disadvantage. This may require an actual transfer to a suitable vacancy, possibly at a slightly higher grade and without competitive interview. The duty may require more favourable treatment of the disabled employee. A local authority’s obligation to appoint on merit is expressly subject to this duty. Whether transfer is reasonable depends on all the circumstances and the statutory factors.

Archibald v Fife Council concerned a road sweeper who became virtually unable to walk following surgery. She could no longer perform manual work but was assessed as capable of sedentary office work. After retraining, she applied unsuccessfully for more than 100 council posts. Because those posts were nominally at a higher grade, the council required competitive interviews. She was eventually dismissed for incapacity.

The Employment Tribunal rejected her disability-discrimination claim because it considered that transferring her without competition would impermissibly favour her. The Employment Appeal Tribunal dismissed her appeal. The Extra Division of the Court of Session also dismissed her appeal, holding that the reasonable-adjustment duty had not been triggered: [2004] IRLR 197.

The unfair-dismissal decision was not appealed. The central issue was whether section 6 of the Disability Discrimination Act 1995 could require transfer to another job when disability made the employee wholly incapable of performing her existing job.

1. Disposition. The House unanimously allowed the appeal and remitted the disability-discrimination complaint to the Employment Tribunal. Lord Hope, Lord Rodger and Baroness Hale delivered substantive speeches. Lord Nicholls and Lord Brown agreed with their reasons. The House did not determine whether the council had ultimately discriminated, because the necessary findings on reasonableness had not been made.

2. Statutory structure. Per Lord Hope and Lord Rodger, section 4 of the Disability Discrimination Act 1995 identifies the unlawful employment acts. Section 5 defines discrimination for that purpose, and section 8 provides the tribunal remedy. The relevant act was dismissal under section 4(2)(d). Whether that dismissal was discriminatory depended upon the interaction of sections 5 and 6.

3. Trigger for the duty. Per Lord Hope, Lord Rodger and Baroness Hale, an employer’s arrangements include the essential requirements of a job and the employee’s contractual liability to dismissal when disability prevents their performance. Those arrangements placed the employee at a substantial disadvantage because she was exposed to disability-related dismissal. The comparison was not confined to non-disabled people doing precisely the same job. Lord Hope and Lord Rodger identified the relevant class here as employees who were not disabled, could perform their jobs and were therefore not exposed to dismissal on that ground.

4. Nature of the adjustment. Per all three substantive speeches, section 6(3)(c) shows that reasonable steps may include transferring the employee to an existing vacancy. Transfer means placing the employee in the post, rather than merely allowing her to compete for it. It is not restricted to a vacancy at the same or a lower grade. Whether a transfer, including one to a slightly higher grade without competitive interview, was reasonable depended on all the circumstances and the section 6(4) factors.

5. More favourable treatment and appointment on merit. Per Baroness Hale and Lord Hope, the opening words of section 6(7) make it subject to section 6 itself. An employer may therefore be obliged to treat a disabled person more favourably where this is needed to remove the disability-related disadvantage. Section 7 of the Local Government and Housing Act 1989 did not prohibit such a transfer. Its merit requirement was expressly subject, through section 7(2)(f), to sections 5 and 6 of the 1995 Act.

6. Justification. Per Lord Rodger, justification of less favourable treatment had to be assessed on the premise that the employer had complied with any section 6 duty. Per Baroness Hale, applying Collins v National Theatre [2004] EWCA Civ 144, justification for a failure to adjust had to be distinct from the circumstances already considered when deciding what adjustment was reasonable. The council’s redeployment policy could not perform both functions independently.

7. Order. The tribunal was to determine whether the council had taken all reasonable steps, including whether it should have transferred the employee or modified the competitive-interview requirement. There was no order for costs or expenses in the House or the court below.

1. House of Lords: Unanimously allowed the appeal in Archibald v Fife Council [2004] UKHL 32, set aside the adverse determination and remitted the disability-discrimination complaint to the Employment Tribunal.
2. Extra Division of the Court of Session: Dismissed the employee’s appeal because it considered that the reasonable-adjustment duty had not been triggered: [2004] IRLR 197.
3. Employment Appeal Tribunal: Dismissed the appeal on the basis that the interview arrangements applied to everyone and did not place the employee at a relevant substantial disadvantage.
4. Employment Tribunal: Dismissed the unfair-dismissal and disability-discrimination complaints. The unfair-dismissal decision was not appealed. The disability-discrimination ruling treated section 6(7) as preventing preferential treatment and regarded the redeployment policy as justification.