Disability and Adjustments – What is reasonable?

Well it has been some time since my last post.  I hope you have missed me.  I have been very busy since we last met, having set up Lionshead Law which started trading on 2 September.   Exciting times!  However, I am back and today I will be discussing whether or not an employer must automatically offer a disabled employee an alternative role following a company restructure, even though other affected staff are required to undergo a competitive interview process.    

The premise behind this argument is that an employer is under a duty to make reasonable adjustments where a provision, criterion or practice (PCP) puts a disabled employee at a disadvantage when compared to an employee who is not suffering from that disability.   In the case of a company reorganisation resulting in the changing of job roles, the PCP would be the requirement for all affected staff to competitively interview for one of the newly created roles.  Therefore, the first question to decide is whether the requirement to apply for a new post puts the disabled person at a disadvantage when compared to his colleagues. 

If the answer to that question is yes (and it invariably will be), then the next question is whether there is any reasonable adjustment that the employer can make to effectively level the playing field.   In the EAT case of Wade v Sheffield Hallam University it was held that the university was not in breach of its duty to make a reasonable adjustment when the Claimant was not automatically offered a new post when her original post was deleted following a reorganisation. 

In this case the Claimant’s role disappeared following a restructure at the university.  She applied for a new post and was unsuccessful because she did not fulfil two of the essential criteria which the post required.   Two years later she applied for the same post and was, again, rejected.  She argued that she should not have had to apply for the post competitively as her disability put her at a disadvantage when compared to individuals who did not suffer from her disability and that as such, the university should have made an adjustment to the process enabling her to be automatically selected for the post without having to compete against her non-disabled colleagues.

The question came down to reasonableness.  Whilst it may be a reasonable adjustment for a company to appoint a disabled individual to a new post without requiring him to interview for it, what ultimately decided this case in the university’s favour was that the employee concerned did not fulfil all of the essential criteria for the position.  It was deemed not reasonable to require the university to appoint someone to a post where only some of the essential criteria had been fulfilled.   However, had the employee fulfilled all the essential criteria then it is likely that it would have been a reasonable adjustment on the part of the university to simply appoint her to the post rather than require her to apply for it alongside her colleagues.

Companies  in similar situations with disabled employees therefore need to be careful when carrying out restructures/redundancies.  Where they are considering requiring affected staff to apply to be considered for new roles/alternative positions, if it is determined that an affected employee who is also disabled fulfils all of the essential criteria for an alternative role, then it may well be an act of unlawful discrimination if that person is not offered the post automatically but instead required to apply for it alongside his colleagues.

About Belinda Lester
As a specialist employment solicitor, my work is divided between litigation and non-contentious matters. I advise predominantly small to medium sized companies on their ongoing employment and HR issues, with a view to avoiding litigation where at all possible. At this time of economic uncertainty, many enquiries relate to company reorganisation/restructure and redundancies and I am able to give clear guidance through the processes associated with these issues. I have extensive experience of representing both Claimants and Respondents in the Employment Tribunal.

5 Responses to Disability and Adjustments – What is reasonable?

  1. Jason says:

    To pick up on the phrasing “had the employee fulfilled all the essential criteria then it is likely that it would have been a reasonable adjustment on the part of the university to simply appoint her to the post rather than require her to apply for it alongside her colleagues”. My interpretation of that is they would HAVE to offer her (and only her!) the role if she had met all the criteria – is that right? I’m querying whether any consideration for others (able-bodied) who also might have met all the criteria would have even been considered or – through fear or reluctance to be seen to be discriminatory – this would have just ended up being a 1 horse race?

    • Yes Jason that is correct. Provided a woman on maternity leave also affected by the restructure didn’t also fulfil all the essential criteria (in which case she would have to be offered the job) then it would almost certainly be deemed a reasonable adjustment to offer the job to the disabled person at the expense of everyone else. The law allows limited positive discrimination in only two areas: maternity and disability. That is because the disadvantages of both are deemed significantly higher than the disadvantages suffered by people with other protected characteristics (eg race, religion, sexual orientation).

  2. Tim Preston says:

    I suppose that is the correct application of Archibald v Fife Council House of Lords on 1st July 2004, [2004] ICR 954, [2004] IRLR 651) or on BAILII website.

    However, it must work very harshly to some individuals, be detrimental to businesses and baffling and demoralising to other staff, where an obviously mediocre, and unmotivated disabled employee has to be preferred and an obviously hard-working, talented and committed able bodied member of staff made redundant in consequence.

  3. Pingback: Chris Hadrill | Top employment law blogging last week – 23.09.2013 to 29.09.2013

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