Archibald (Appellant) v. Fife Council (Respondents) (Scotland)
35. Section 6(1) envisages a comparison, but its exact nature is not spelled out. Lady Hale considers that the duty arises if the disabled person is placed at a substantial disadvantage in comparison with "non-disabled people generally". It respectfully appears to me, however, that, to be meaningful, the comparison must be with some limited class of persons who are not disabled.
36. The difficulty in identifying the appropriate comparators arises, in part at least, because section 6(1) is intended to apply in a range of situations. As section 6(2) shows, the "arrangements" in subsection (1) comprise not only the basis on which employment is afforded to an employee, but also the basis on which promotion, a transfer, training or any other benefit is offered or afforded. This means that in section 6(1) one cannot identify a single class of "persons who are not disabled" for the purposes of comparison. And indeed the draftsman has not tried to do so, preferring to leave it to readers to identify the description of the appropriate comparators, depending on the situation in which the discrimination is said to have occurred - in offering or affording employment, promotion, a transfer or any other benefit, as the case may be.
37. Moreover, section 6(2)(a) and (b) have been carefully crafted by reference to section 4(1) and (2). An examination of the two sets of provisions confirms that section 6(2)(a) applies only to arrangements for prospective employees. But the wording "offers or affords" in section 6(2)(b) has been chosen so that paragraph (b) covers the terms, conditions or arrangements on which employment is offered to prospective employees, as well as those on which employment and other benefits are afforded to current employees and, where appropriate, former employees.
38. These various factors suggest that the comparison envisaged in section 6(1) need not be with fit people who are in exactly the same situation as the disabled person. For example, if an employer offers a disabled person a job on terms that would place him at a substantial disadvantage by comparison with existing employees who are not disabled, that will trigger the section 6 duty to make adjustments. There is no need to compare the position of the disabled applicant with that of applicants who are not disabled. Even where a disabled person is employed, the comparison need not necessarily be with non-disabled persons who have the same job. This is obvious, for instance, in the case of promotion. Within a company the opportunity for promotion to a particular managerial post will often be open to employees who are currently doing a variety of jobs, in a number of different departments or divisions of the employer's business, whether in the same place or at the other end of the kingdom. In that situation the question under section 6(1) is whether the basis on which the employer affords his employees the opportunity for promotion places the disabled person at a substantial disadvantage in comparison with non-disabled people who are competing for the same promoted post, irrespective of where or what their current job may be. Mutatis mutandis the same applies to the other situations envisaged by section 6(2)(b).
39. Indeed, even where one is considering the terms, conditions or arrangements on which the disabled person is afforded employment, the comparison need not be with people doing the same job. Suppose, for example, that a disabled person works in an office with many other employees, but she is the only one doing her particular job. If she requires to attend a clinic for treatment for her disability at times which make it impossible for her to meet the conditions of the employer's scheme for flexible working, in terms of section 6(1) she will be at a substantial disadvantage by comparison with all the other employees in the office who are not disabled. Her employer will accordingly be under a duty to take reasonable steps to prevent the scheme from placing her at this disadvantage.
40. In that kind of case the disabled person is carrying out the work which she is employed to do but is placed at a disadvantage by the conditions of her employer's flexible working scheme. There it is easy to see that an "arrangement" made by the employer places her at a substantial disadvantage in terms of section 6(1). At first sight, the position is rather less clear where, as in the present case, an employee becomes disabled and, simply for that reason, is unable to carry out the essential functions of the job she is employed to do. As Lord McCluskey noted obiter, at para 43, the disabled person's disadvantage might seem to derive from the onset of her disability rather than from any arrangements made by her employer. Such an interpretation of section 6(1) would, however, overlook the provisions of the Code of Practice which was issued by the Secretary of State under section 53(1) of the Act and was subject to negative resolution of either House of Parliament under section 54(4). Section 53(6) provides that, where any provision of the code appears to the court to be relevant to any question arising in proceedings under the Act, "it shall be taken into account in determining that question." The key question to be decided in this case is whether an employer may be under a section 6 duty to an employee who becomes unfit to carry out the main, or essential, functions of her job. It appears to me that examples in paragraphs 4.20 and 6.21 of the Code of Practice are indeed relevant to that question. The former says:
Paragraph 6.21 includes this example:
These passages show, unmistakably, that the code proceeds on the view that an employer may have to make a reasonable adjustment under section 6 in the case of an employee whose disability makes it impossible for her any longer to perform the main, or essential, functions of her job.
41. Taking account of these passages in the Code of Practice, I therefore conclude that, for the purposes of section 6(1), the terms, conditions and arrangements relating to the essential functions of the disabled person's employment are indeed "arrangements made by the employer" which place the disabled person at a substantial disadvantage by comparison with persons who are not disabled if she becomes unable to carry out those functions.
42. If that is how section 6(1) is to be interpreted, what is the substantial disadvantage that the disabled person suffers in that situation by comparison with persons who are not disabled? It cannot be that she is required to perform the essential functions of the job, since that requirement is placed on everyone who holds the same job. Here, all road sweepers of Mrs Archibald's grade have to walk and sweep. In fact, however, the terms of the disabled person's contract of employment do not mean that, once she becomes disabled, she is forced to perform the essential functions of her job despite being unfit to do so. Here, Mrs Archibald never swept a road after she became unfit. What actually happens if an employee becomes so disabled that she cannot perform the essential functions of her job is that, under her contract of employment, she is liable to be dismissed. That is the substantial disadvantage she suffers. The contractual term, whether express or implied, which provides for her dismissal in these circumstances constitutes the relevant "arrangement" for the purposes of section 6(1). That arrangement places the disabled person at a substantial disadvantage by comparison with persons who are not disabled, because she is liable to be dismissed on the ground of disability whereas they are not. The appropriate comparators are therefore other employees of the employer who are not disabled, can therefore carry out the essential functions of their jobs and are, accordingly, not liable to be dismissed on the ground of disability.
43. The employer is under a duty to take reasonable steps to prevent the terms of the disabled person's contract from placing her at this substantial disadvantage. As envisaged in section 6(3)(c), this may require the employer to transfer her to a vacant post where she will be able to carry out the essential functions of the job and so will not be at risk of being dismissed. That step would involve putting the disabled person in the new post, not merely giving her the opportunity to apply for the post and appointing her if her application was successful. Section 6(3)(c) is just an example. It may be that in some cases the employer's duty would require him to move the disabled person to a post at a (slightly) higher grade. It all depends on the circumstances. If the employer fails to take the steps that are reasonable, he discriminates against the disabled person in terms of section 5(2) and so discriminates against her unlawfully under section 4(2)(d) if he dismisses her. What steps are reasonable depends on the circumstances of the particular case, which the employment tribunal must establish.
44. Here, the council were undoubtedly under a section 6 duty to take reasonable steps. Mrs Archibald says that the council's duty was to transfer her to a vacant post in their organisation for which she was suited and in this way to prevent her from suffering the disadvantage of being dismissed, in accordance with the terms of her contract of employment, on the ground that she was not capable of doing the job of road sweeper. If that was their duty and the council failed to comply with it, by dismissing her they discriminated against Mrs Archibald unlawfully under section 4(2)(d). But whether or not that was their duty cannot be determined until the tribunal establish the relevant circumstances which will, of course, include the council's redeployment policy with its requirement for advertisement and competitive interviews for posts of a higher grade.
45. Since the council were under a section 6 duty to Mrs Archibald and the employment tribunal misconstrued the scope of that duty, their decision cannot stand. I would accordingly allow the appeal and remit the case to the employment tribunal to consider whether, by dismissing Mrs Archibald, the council discriminated against her unlawfully in terms of section 4(2)(d) and, in particular, whether they fulfilled their section 6(1) duty towards her.BARONESS HALE OF RICHMOND
46. This case concerns the definition and scope of an employer's duty to make adjustments under section 6 of the Disability Discrimination Act 1995 and in particular whether it arises at all if an employee becomes totally incapable of doing the job for which she is employed but could do another job within the same organisation.
47. According to its long title, the purpose of the 1995 Act is 'to make it unlawful to discriminate against disabled persons in connection with employment, the provision of goods, facilities and services or the disposal or management of premises . . . ' But this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the differences between the genders are generally regarded as irrelevant. The 1995 Act, however, does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the special needs of disabled people. It necessarily entails an element of more favourable treatment. The question for us is when that obligation arises and how far it goes.
48. The Act does not apply to everyone who has or has had some mental or physical impairment but only where that impairment 'has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities' (section 1(1)). It is lawful to discriminate against a spectacle wearer but not against a visually impaired person. This indicates that the Act is concerned with addressing the special needs of those with serious handicaps, in this case in the labour market. It is unlawful for an employer to discriminate against a disabled person in various ways in relation to the offering of employment, the terms on which she is employed, the opportunities afforded 'for promotion, a transfer, training or receiving any other benefit' during employment, dismissing her or subjecting her to any other detriment (section 4). This section largely repeats equivalent provisions in the sex and race discrimination legislation. The difference lies in the meaning given to discrimination in section 5.
49. There are two sorts of discrimination. Section 5(1) deals with less favourable treatment, that is where:
50. Section 5(2) deals with a failure to make adjustments, that is where:
51. The justification defence is special to disability discrimination. It recognises that there may be good reason for less favourable treatment or failing to make the necessary adjustments, but in each case this can only be shown if the reason for it is both material to the circumstances of the particular case and substantial (section 5(3) and (4)). Furthermore, less favourable treatment cannot be justified if an employer has failed to comply with his duty to make adjustments unless it would have been justified even if he had complied (section 5(5)).
52. This brings us to the duty to make adjustments contained in section 6, which so far as material reads as follows:
53. Mrs Archibald was employed by Fife Council as a road sweeper Manual Worker Grade 1 from 6 May 1997. As a result of a rare complication during minor surgery on 25 April 1999, she became virtually unable to walk. It has never been disputed that she is a disabled person under the Act. The medical advice was that, for the foreseeable future, she could no longer carry out the job of road sweeper. She could not walk or sweep. She could however do sedentary work and was keen to do so. The council arranged for her to undertake a number of computer and administration courses to equip her with appropriate skills. The assessment was very positive and recommended that she was 'more than capable of carrying out work in an office environment'. Over the next few months, she applied for over 100 posts within the council. These were all on the APT&C scale rather than on the Manual Worker Grade 1 scale. The basic wage was very slightly higher than for the manual grade. According to the council's redeployment policy, people seeking redeployment at a higher grade had to undertake competitive interviews. Mrs Archibald failed to obtain any of these posts. She told the Employment Tribunal that she did not think that this was anything to do with her disability but rather that 'they' did not look past the fact that she was a road sweeper - someone coming from an industrial background having to compete with others from a staff background. Eventually, as she was still unable to return to work as a road sweeper and the redeployment procedure had been exhausted, she was dismissed on grounds of incapacity from 12 March 2001.
54. She appealed unsuccessfully within the council and then complained to an Employment Tribunal. The essence of her disability discrimination complaint was that she should not have been required to go though the competitive interviews if she could show that she was qualified and suitable for the job in question. The tribunal quoted part of section 6(7): ' . . . nothing in this Part is to be taken to require an employer to treat a disabled person more favourably than he treats or would treat others.' The council's policy was that competitive interviews were required if applying for a job at a higher grade. The tribunal therefore held that, as there was nothing apart from transferring her to another post that the council could have done, they were not in breach of their duty under section 6. The tribunal went on to say that, if there had been a breach, it would have been justified by the policy.
55. The Employment Appeal Tribunal dismissed her appeal, on the basis that there was nothing in the arrangements for the sedentary job interviews which placed her at a substantial disadvantage because the policy applied to everyone. Hence the obligation to make an adjustment had not been triggered at all. The Extra Division of the Court of Session ( IRLR 197) also dismissed her appeal on the ground that the obligation to make an adjustment had not been triggered, but their reasoning was rather different. Before them, the focus had shifted from the arrangements made for the sedentary posts for which Mrs Archibald had applied, which did not place her at a disadvantage, to the arrangements made for the road sweeping post which she could no longer do.
56. Lord Hamilton held that the duty in section 6(1) was linked to the particular employment involved: that is, where the disabled employee is placed at a substantial disadvantage in the performance of that particular employment in comparison with people who are not disabled and it is open to the employer to make adjustments to the arrangements of that particular employment to prevent the disadvantage having that effect (paragraph 26). Lord MacFadyen held that the 'arrangements' could not include the 'fundamental essence of the job' so that the duty did not arise when the employee became incapable of doing the job at all (paragraph 37). Lord McCluskey also saw the duty as arising in relation to the requirements of the particular job, so that it did not arise if there was nothing the employer could do to make it possible for the employee to continue as a road sweeper (paragraph 44).
The arguments on appeal
57. It is common ground that the Act entails a measure of positive discrimination, in the sense that employers are required to take steps to help disabled people which they are not required to take for others. It is also common ground that employers are only required to take those steps which in all the circumstances it is reasonable for them to have to take. Once triggered, the scope of the duty is determined by what is reasonable, considered in the light of the factors set out in section 6(4). The debate is about what triggers the duty. The council argue that its purpose is to enable the disabled person to overcome the obstacles which her disability puts in the way of her doing the job for which she has applied or is already employed. The examples of steps which the employer may have to take, set out in section 6(3), are with the exception of (c) all adjustments which might be made to the particular job - adapting the premises, reallocating duties, altering the hours, modifying equipment, or providing training, interpretation or supervision. Once those obstacles have been cleared out of the way, there is a 'level playing field' and the disabled person is free to compete on her merits with anyone else. There is no positive discrimination other than redressing the impact of the disability on her ability to do a job which she is otherwise well fitted to do. This duty cannot arise when the disability means that she cannot do the job at all and there is no adjustment to the arrangements for that job which can make any difference.
58. The Disability Rights Commission, which has taken up the case on behalf of Mrs Archibald, argue that in such a case the duty is indeed triggered. The control mechanism lies in the fact that the employer is only required to take such steps as it is reasonable for them to have to take. They are not expected to do the impossible. But among the possible steps is (c) - transfer to fill an existing vacancy, which must include an existing vacancy for a different job. Inability to do the present job cannot mean that there is no duty at all. The Act was clearly intended to apply to existing employees who became disabled as well as to would-be employees who were already disabled. This is reflected in paragraph 4.20 of the Code of Practice, issued by the Secretary of State and laid before Parliament under sections 53 and 54 of the Act, which says this under the heading 'transferring the person to fill an existing vacancy':
59. Underlying this debate there may be, as Mr O'Neill on behalf of the council argues, a fundamental philosophical difference about the permissible limits of the positive discrimination which the duty to make reasonable adjustments inevitably entails. The Act predates the Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (the 'Framework Directive'). That Directive cannot constitute grounds for reducing the level of protection against discrimination already afforded by Member States (article 8.2). Nevertheless both sides seek to rely upon its principles. The council point to the opening words of recital 17 - 'This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, . . .' - while the Commission point to its concluding words - '. . . without prejudice to the obligation to provide reasonable accommodation for people with disabilities.' The council argue that it is a framework for equal, not preferential, treatment. Article 1 provides its purpose:
60. The obligation to provide reasonable accommodation in article 5 is 'in order to guarantee compliance with the principle of equal treatment'. The Commission point out that article 5 continues: 'This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer.' The Commission also argue that equal treatment is not limited to securing equality of opportunity. The Directive expressly contemplates positive action, both in general and in the particular case of disability, in article 7: