Chief Constable of South Yorkshire Police v Jelic

The duty to make reasonable adjustments under the Disability Discrimination Act 1995 is assessed objectively and according to the particular circumstances. The statutory examples are illustrative, not exhaustive. A tribunal is not precluded from finding that a job swap, or the creation of a role within an existing organisational need, is a reasonable adjustment. Failure to consult is not itself a breach, but an employer cannot rely on information it would have obtained through consultation to defend a failure to make reasonable adjustments. The reasonableness of an adjustment is assessed at the relevant time; speculation about what consultation might later have achieved is generally relevant to remedy, not liability. A transfer to civilian employment following medical retirement may legally be capable of being a reasonable adjustment, but the issue requires adequate reasoning and evidence.

A police constable with chronic anxiety syndrome was medically retired after the South Yorkshire Police did not properly reconsider adjustments when his role increasingly required face-to-face public contact. The Employment Tribunal rejected his disability-related discrimination claim but upheld his reasonable-adjustments claim.

It found that the Chief Constable could reasonably have swapped the constable’s role with that of another officer performing suitable non-public-facing work. It also found that medical retirement followed by immediate employment in an available civilian police staff role could have been a reasonable adjustment. The Chief Constable appealed, principally on the legal scope of reasonable adjustments, procedural fairness, causation and the adequacy of the Tribunal’s reasoning.

1. Appeal partly allowed. The finding that medical retirement followed by civilian re-employment was a reasonable adjustment was set aside because the Tribunal’s reasoning and evidential assessment were inadequate. The issue could be remitted to a fresh Tribunal if necessary. All other grounds were dismissed.
2. The test under the Disability Discrimination Act 1995 is objective. What is reasonable depends on the particular circumstances, and the Employment Tribunal is entrusted with that assessment. The examples in section 18B(2), including transfer to fill an existing vacancy, are non-exhaustive and are not rules of law.
3. A tribunal is not barred as a matter of law from finding that two existing jobs should be swapped to accommodate a disabled employee. The adjustment remains subject to objective assessment of practicability, effect, cost, disruption, resources and the organisation’s activities. In this disciplined police service, the evidence supported the finding that both officers could perform the other’s role and that the swap was reasonable.
4. There is no distinct statutory duty to consult. However, an employer’s failure to consult may jeopardise its defence because it cannot rely on the absence of information which proper consultation would have produced. Once the claimant identifies an apparently reasonable adjustment capable of removing the disadvantage, the burden shifts to the employer to provide an adequate explanation.
5. The Tribunal was not required to speculate about what consultation would have achieved or whether the claimant would ultimately have accepted alternative employment. Those matters concerned what might subsequently have happened and were relevant principally to remedy.
6. It was legally open to consider transfer to a civilian role after medical retirement because the duty arose before retirement and continued until termination. However, the Tribunal had insufficiently addressed the Force’s operational needs, resources, policies, selection processes and competing considerations.

1. Employment Appeal Tribunal: upheld the reasonable-adjustments finding concerning the proposed job swap, but allowed the appeal on the alternative medical-retirement and civilian-re-employment adjustment because the Tribunal’s reasons were inadequate. The matter could be remitted to a fresh Employment Tribunal.
2. Employment Tribunal: rejected the disability-related discrimination claim but upheld the reasonable-adjustments claim, including findings concerning a job swap and possible civilian re-employment.