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Archibald (Appellant) v. Fife Council (Respondents) (Scotland)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Fife Council (Respondents) (Scotland)
THURSDAY 1 JULY 2004
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Archibald (Appellant) v. Fife Council (Respondents) (Scotland)
 UKHL 32LORD NICHOLLS OF BIRKENHEAD
1. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead, Lord Rodger of Earlsferry and Baroness Hale of Richmond. I agree that for the reasons they give, which in all essential respects are to the same effect, this appeal should be allowed.
LORD HOPE OF CRAIGHEAD
2. I have had the advantage of reading in draft the speech of my noble and learned friend, Baroness Hale of Richmond. Subject to the following observations, I agree with it. I too would allow the appeal and remit the case to the Employment Tribunal.
3. Mrs Archibald's complaint of unfair dismissal and of discrimination under the Disability Discrimination Act 1995 was presented in her application to the employment tribunal in these terms:
4. I agree with my noble and learned friend Lord Rodger of Earlsferry that it is important, before examining the discrimination issue and to put it into its correct context, to identify the correct starting point. Section 8(1)(a) of the 1995 Act provides that there may be presented to an employment tribunal a complaint by any person that another person has discriminated against him in a way that is unlawful under Part II of the Act. Section 8(2) sets out the remedies that the tribunal may grant to the complainant if it finds that a complaint presented to it under the section is well founded.
5. The circumstances in which it is unlawful for an employer to discriminate against an employed person are set out in section 4(1) and (2) of the Act. Section 4(1) deals with discrimination by an employer against a disabled person in regard to offers of employment. Section 4(2) deals with discrimination by an employer against a disabled person whom he employs. The appellant was already in the employment of the council when she became disabled. So the basis for her complaint of discrimination must be found in section 4(2). Section 4(2)(d) provides that it is unlawful for a person to discriminate against a disabled person whom he employs by dismissing him.
6. The tribunal's approach to the complaint under the 1995 Act is indicated by the following passage which appears at p 8 of the extended reasons for their decision:
7. It is important however to appreciate that the only function of section 5 is to define what is meant by the word "discriminate" where it appears in section 4 of the Act. Section 5 is not, of course, unimportant. But it is to section 4 that one must go first in order to discover whether the employer's act was an unlawful act which entitled the complainant to apply to the employment tribunal for a remedy. The first step, then, is to identify the act which is said to have been unlawful. As I understand Mrs Archibald's case, it is the act which the council took on 12 March 2001 when it dismissed her from its employment because she was physically unable to do her job as a road sweeper.
8. An act of dismissal is only unlawful for the purposes of the 1995 Act if the employer discriminates against the disabled person by doing so. This proposition directs attention to sections 5 and 6 of the Act which Lady Hale has analysed. The steps by which the heart of the complaint in this case is reached are to be found in subsections (1), (3) and (5) of section 5.
9. At first sight, since the heart of the complaint lies in section 6, this appears to be a case of discrimination under section 5(2) which provides that an employer "also" discriminates against a disabled person if he fails to comply with a section 6 duty imposed on him in relation to the disabled person and he cannot show that his failure to comply with that duty is justified. But this was not a case about any physical features of premises occupied by the employer: see section 6(1)(b). And section 6(2) provides that section 6(1)(a), which refers to any arrangements made by or on behalf of an employer, applies only in relation to (a) arrangements for determining to whom employment should be offered - which is not this case - and
10. So the question is, in terms of section 5(1) read with section 5(3), whether the council can show that they were justified in dismissing Mrs Archibald for a reason related to her disability. The result of their dismissal of her on this ground was that, because of her disability, they treated her less favourably than they would have treated others in their employment who were not disabled from doing the job they were employed to do. They will not be able to show that their treatment of her was justified if they would not have been justified in dismissing her if they had complied with their duty under section 6 to make adjustments to prevent her disability having that effect: see section 5(3).
11. Mrs Archibald was employed by the council as a manual worker. It was an implied "condition" or an "arrangement" of her employment within the meaning of section 6(2)(b) that she should at all times be physically fit to do her job as a road sweeper. She met this requirement when she entered the council's employment on 6 May 1997. She underwent minor surgery in April 1999 as a result of which she became disabled. As a result she was no longer physically fit to do this job. This exposed her to another implied "condition" or "arrangement" of her employment, which was that if she was physically unable do the job she was employed to do she was liable to be dismissed.
12. Her disability placed her at a substantial disadvantage in comparison with others in the same employment who were not at risk of being dismissed on the ground that, because of disability, they were unable to do the job they were employed to do. These persons, a limited class, were her "comparators". There was nothing that the council could have done by way of adjustment to the manual labour job to cure that fact that she was unable to do that job due to her disability. But she was not so disadvantaged that she could not conceivably have been employed by them at all. If she had been given a job to do which she was physically able to do, the disadvantage which she was under in comparison with others in the same employment who were not at risk of being dismissed on the ground of disability would have been removed.
13. So the question comes to be whether there were steps which the council could have taken by way of adjustment to the conditions of her employment to remove the disadvantage which she was under because she was at risk of dismissal because she was unable to do the job she was employed to do because of her disability.
14. The council, very commendably, went to considerable lengths to help her find an alternative position within their own organisation for which she was suited which did not involve the use of manual labour. Section 6(3)(c) shows that this kind of adjustment was within the scope of the duty which the council were under in these circumstances. This paragraph includes, as an example of the steps that may be taken by way of adjustment, "transferring" the disabled person to fill another vacancy. A purposive meaning is to be given to the word "transferring" in this context. It is to be borne in mind that it is, after all, only an example. It is not be read as restricting the adjustment which is contemplated to a post on the same pay grade or at the same level of seniority.
15. The duty which rested on the council under section 6(1) is described in the side note to section 6 as a duty to make adjustments. But it is not simply a duty to make adjustments. The making of adjustments is not an end in itself. The end is reached when the disabled person is no longer at a substantial disadvantage, in comparison with persons who are not disabled, by reason of any arrangements made by or on behalf of the employer or any physical features of premises which the employer occupies.
16. As the determination of the employment tribunal makes clear, a substantial number of adjustments to the normal procedures were made in Mrs Archibald's case. Some of them involved positive discrimination in her favour, such as her automatic short listing for the available posts. This was within the scope of the duty, as it was necessary for the council to redress the position of disadvantage that she was in due to her disability. The crucial question is whether the council should have taken one more step and simply transferred her to a sedentary job for which she was suitable, or at least dispensed in her case with the need for competitive interviews.
17. The requirement for competitive interviews seems to have had its origin in section 7(1)(b) of the Local Government and Housing Act 1989, which provides that every appointment of a person to a paid office or employment under a local authority in Scotland shall be made on merit. It is to be found in section 10 of the council's Attendance Management Guidelines for Managers, which deals with cases of long-term or short-term sickness absence, including those due to disability. It requires all other options to be considered before dismissal is resorted to. Paragraph 10.5 sets out the procedure which is to be followed where the person is being redeployed to another service. Where the post is of the same or a lower grade, there is no requirement for competitive interviews to determine the employee's suitability for the post which is on offer. Applicants are to be considered in competition with other applicants, but all that is needed for this purpose is a meeting between the employee and an appropriate manager. But where the post is of a higher grade, "this should be advertised and competitive interviews held."
18. The employment tribunal did not explore the question whether it would have been reasonable for the council simply to have transferred Mrs Archibald to a sedentary job for which she was suitable or whether the council's policy requirement for a competitive interview should have been dispensed with in her case. This was because the tribunal overlooked the opening words of section 6(7) of the 1995 Act, which qualify the proposition that nothing in Part II of the Act is to be taken to require the employer to treat a disabled person more favourably that he treats or would treat others. These words provide that the subsection is subject to the provisions of section 6 itself.
19. This means that section 6(7) is subject to the duty to make adjustments in relation to people who are at a substantial disadvantage because they are disabled in comparison with persons who are not disabled: section 6(1). The performance of this duty may require the employer, when making adjustments, to treat a disabled person who is in this position more favourably to remove the disadvantage which is attributable to the disability. Section 7(1) of the Local Government and Housing Act 1989, in its turn, is qualified by section 7(2)(f) of that Act, to which the opening words of section 7(2) make it subject. In terms of section 7(2)(f), section 7(1)(b) is subject to sections 5 and 6 of the 1995 Act. The result is that a disabled person can lawfully be transferred to a post which she is physically able to do without being at risk of dismissal due to her disability, provided the taking of this step is a reasonable thing for the employer to do in all the circumstances.
20. The tribunal did not consider whether the policy requirement ought to have been adjusted in Mrs Archibald's case to remove the disadvantage which she faced due to the fact that she was at risk of being dismissed because she was not longer able to do her job as a road sweeper. That disadvantage could have been removed by transferring her to a sedentary post for which she was suitable from her previous post as a manual labourer. If that had been done, her disability would no longer have exposed her to the risk of dismissal on the ground that she was not physically able to do the job that she was employed to do.
21. This is the point which lies at the centre of the issues that the tribunal will need to consider when the case is remitted to them and they are examining the steps that the council could reasonably have taken in all the circumstances by way of adjustment to the arrangements which exposed Mrs Archibald to the risk of dismissal on the ground of her disability.
LORD RODGER OF EARLSFERRY
22. I have had the privilege of considering the speech of my noble and learned friend, Baroness Hale of Richmond, in draft. I agree with her that the appeal should be allowed, for substantially the same reasons as she gives. Since the issues are of considerable importance for the working of the legislation, it may be helpful, however, if I explain those reasons in my own words.
23. The appellant, Mrs Archibald, made a complaint to the employment tribunal against her employers, Fife Council. She complained of unfair dismissal and discrimination under the Disability Discrimination Act 1995 ("the Act"). Since the council admitted that she had been dismissed, the onus lay on them to establish the alleged reason for the dismissal, viz capability. This meant that the proceedings began with evidence from the council's witnesses who dealt largely with the steps taken to help Mrs Archibald to obtain another post with the council after she became unfit to carry out her duties as a road sweeper Manual Worker Grade 1. In the event the tribunal found that Mrs Archibald had indeed been dismissed because she had not been capable, on medical grounds, of carrying out her job. The tribunal also considered that the council's decision to dismiss her fell within the band of responses open to a reasonable employer. The tribunal therefore dismissed her complaint of unfair dismissal. Mrs Archibald did not appeal against this aspect of the tribunal's decision. That left her complaint of disability discrimination.
24. The Act does not make it unlawful to discriminate against a disabled person in all circumstances. Rather, it outlaws that kind of discrimination in various fields, including employment, which is covered in Part II. Even within that field, however, the Act outlaws only those kinds of discrimination that are set out in section 4. Section 4(1) makes it unlawful for an employer to discriminate in certain ways against a disabled person who applies for a job; similarly, section 4(2) makes it unlawful for him to discriminate in various ways against a disabled person whom he employs or has employed. See Rhys-Harper v Relaxion Group plc  UKHL 33;  ICR 867. As I emphasised, at pp 930H - 931A, para 210, under reference to Court of Appeal authority, disabled persons invoke the Act not to enforce their contractual rights against their employers but to enforce their statutory rights under section 4(1) and (2) not to suffer discrimination in the field of employment. The words of Peter Gibson LJ in Hall v Woolston Hall Leisure Ltd  ICR 99, 113B - C, at para 46, apply as much to the Act as to the other anti-discrimination statutes: it is the discrimination that is the core of the complaint, the fact of employment and the dismissal being the particular factual circumstances which Parliament has prescribed for the disability discrimination complaint to be capable of being made.
25. When can an employer be said to "discriminate" against a disabled person in terms of section 4(1) and (2)? The answer is to be found in section 5(1) and (2). So the reason for considering whether an employer has "discriminated against a disabled person" in terms of section 5(1) and (2) is simply to discover whether he has unlawfully "discriminated" against that disabled person in terms of either section 4(1) or (2). Only unlawful discrimination under section 4(1) or (2) entitles the disabled person to a remedy from the employment tribunal under section 8(2).
26. In the present proceedings Mrs Archibald complains that the council "discriminated" against her unlawfully in terms of section 4(2)(d) by dismissing her. Before the employment tribunal she said that, by dismissing her, the council had discriminated against her, for the purposes of that provision, in two ways. She alleged, firstly, in terms of section 5(1), that in dismissing her because she was unable to do her work as a road sweeper, due to her disability, the council had treated her less favourably than they would have treated others who could do their work. Secondly, under reference to section 5(2) she alleged that, in dismissing her, the council had failed to comply with a section 6 duty imposed on them to transfer her to a vacant post within their organisation without requiring her to undertake a competitive interview for the post.
27. It was common ground that Mrs Archibald was a disabled person in terms of the Act and that the council had dismissed her because her disability meant that she could not do her job as a road sweeper. Therefore, for the purposes of section 4(2)(d), what the tribunal had to decide was whether, by dismissing her, the council had "discriminated" against her in either of the two ways set out in section 5(1) or 5(2).
28. So far as section 5(1) is concerned, again it was accepted that, in dismissing Mrs Archibald because she could not do her job as a road sweeper by virtue of her disability, the council had treated her less favourably than they treated or would have treated employees who were fit and could do their jobs. The tribunal held that, at the time when the council dismissed her, some two years after she became unfit, it was not clear when, if ever, Mrs Archibald would be fit to resume her duties as a road sweeper. Moreover, her absence from work was causing operational difficulties for the council. The tribunal therefore held that the less favourable treatment, viz the dismissal, of Mrs Archibald had been justified in terms of section 5(1)(b). Accordingly, it did not amount to discrimination in terms of section 5(1). In this respect the council had not "discriminated" against her unlawfully in terms of section 4(2)(d) of the Act.
29. The tribunal went on to consider Mrs Archibald's alternative allegation, that the council had discriminated against her in terms of section 5(2) of the Act by failing to comply with a section 6 duty in relation to her. The contention was that it would have been reasonable for the council to transfer her to fill a vacancy in their organisation without requiring her to undertake a competitive interview for the post. The tribunal held that this would have amounted to giving Mrs Archibald preferential treatment and that section 6(7) made it clear that there was no duty to do that. The council had therefore not failed to comply with section 6 and so had not discriminated against Mrs Archibald in terms of section 5(2). In this respect too the council had not "discriminated" against Mrs Archibald unlawfully in terms of section 4(2)(d).
30. I agree with your Lordships that the tribunal misconstrued section 6(7): the opening words of the subsection, "subject to the provisions of this section", show that there may indeed be a duty on the employer under section 6 to take steps even if those steps involve treating the disabled person more favourably than others. I also agree that section 7 of the Local Government and Housing Act 1989 permits a local authority to transfer a disabled person to another post in this way if that is done to fulfil a duty under section 6 of the Act. It follows that, if your Lordships conclude that the council were indeed under a section 6 duty to Mrs Archibald to take steps, the tribunal's decision that the council had complied with that duty was vitiated by their misunderstanding of its potential scope. In that event, the tribunal's decision on section 6 and section 5(2) would require to be set aside.
31. From her grounds of appeal to the Employment Appeal Tribunal it appears that Mrs Archibald did not challenge the employment tribunal's decision to reject her complaint so far as it was based on less favourable treatment discrimination under section 5(1). The same goes for her appeal to the Court of Session. In both courts the emphasis was on her complaint that the council had failed to comply with their duty to make adjustments under section 6(1), had therefore discriminated against her in terms of section 5(2) and so had, in that way, "discriminated" against her unlawfully in terms of section 4(2)(d) by dismissing her. This was also the thrust of the submissions on her behalf before the House. In my view, however, in a case like the present, where the alleged failure of duty relates to the procedures leading up to the disabled person's dismissal, it is not possible to divorce the alleged discrimination in terms of section 5(1) from the duty to take steps under section 6 and hence from the alleged discrimination in terms of section 5(2).
32. Section 6(1) prescribes a duty that is incumbent on an employer at any relevant time, before, during or after any period of employment. For that reason, in considering, for the purposes of section 5(1), whether an employer has treated a disabled person less favourably than he would treat others, the tribunal must proceed on the premise that the employer will have complied with this duty. Hence, in terms of section 5(5), the employer's less favourable treatment of his employee will not be justified under section 5(1) and (3) unless it would also have been justified if the employer had complied with his section 6 duty by making any adjustments required by section 6(1). So, in the present case, before a tribunal can decide whether the council's less favourable treatment of Mrs Archibald was "justified" in terms of section 5(1) and (3), they must first determine whether the council owed her a duty to make adjustments, what the content of any such duty was in the circumstances and what the position would have been if the council had fulfilled any such duty that was incumbent on them. If, for instance, fulfilment of their duty under section 6 would have required the council to transfer Mrs Archibald to a vacant position within their organisation, they would not have been justified in dismissing her from her job as a road sweeper unless, for some reason, they would also have been justified in dismissing her from that other position. It follows that, in a case like the present, it is not possible to decide whether the employer discriminated against a disabled person under section 5(1) without first deciding any issue regarding a duty under section 6. Therefore, if your Lordships hold that there was a duty on the council under section 6, which might have required them to transfer Mrs Archibald to another position within their organisation, the tribunal's finding, for the purposes of section 5(1), that the council did not discriminate against her by treating her less favourably will be flawed and must, if necessary, be reconsidered by the tribunal.
33. The critical questions therefore relate to the duty of an employer under section 6(1) to take reasonable steps to prevent any arrangements made by him placing the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled. If the employer fails to carry out that duty, he discriminates against the disabled person under section 5(2) unless he can show that his failure to comply with the duty is justified by a reason that relates to the circumstances of the particular case and is substantial. In broad terms, the idea is that, if an employer leaves a disabled person at a substantial disadvantage from his arrangements when he should have taken steps to shield her from that disadvantage, he discriminates against her.
34. Before the anaesthetic procedure went wrong, Mrs Archibald was fit and able to carry out her duties as a road sweeper. Afterwards, she was not fit to do so. In this case what changed was not the terms, conditions or arrangements on which the council afforded Mrs Archibald employment; what changed was her fitness and hence her ability to carry out her job as a road sweeper. But, as Lord Hamilton remarked in the court below, at para 23, the sequence of events is not crucial:
The issue therefore is whether, after she became disabled, "any arrangements made" by the council placed Mrs Archibald at a substantial disadvantage in comparison with persons who were not disabled.