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

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    61.  None of this helps us much in defining the limits of what should be done to safeguard or promote the integration of disabled people in the working environment. But that is clearly an important overall aim which justifies making a reasonable accommodation in what the employer would otherwise do in order to cater for the needs of a specific disabled person.

Discussion

    62.  The task before us is essentially one of statutory construction. Section 6(1) applies to 'any arrangements' made by or on behalf of an employer. These arrangements have to relate either to the arrangements for determining to whom employment will be offered, or to 'any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded' (section 6(2)). Subject to that, the term 'arrangements' is undefined. It could clearly relate to the council's redeployment policy, but in this case that did not put Mrs Archibald at a substantial disadvantage compared with anyone else. It could equally apply to the terms on which Mrs Archibald held her road sweeping job. An employer's arrangements for dividing up the work he needs to have done into different jobs are just as capable of being 'arrangements' as are an employer's arrangements for deciding who gets what job or how much each is paid. Some employers might combine cooking and bottle-washing in one job while others might treat them quite differently. The job descriptions for all their posts are 'arrangements' which they make in relation to the terms, conditions and arrangements on which they offer employment Also included in those arrangements is the liability of anyone who becomes incapable of fulfilling the job description to be dismissed.

    63.  The next question, therefore, is whether those arrangements placed her 'at a substantial disadvantage in comparison with persons who are not disabled'. The answer to that was clear. The job description required her to walk and sweep and she could not for the foreseeable future do that. Hence she was eventually dismissed for incapacity. Any steps which the council might have to take under section 6(1) must be 'in order to prevent the arrangements … having that effect'. 'That effect' clearly refers to her being placed at a substantial disadvantage in comparison with non-disabled persons. So who are the non-disabled persons concerned?

    64.  If they are only non-disabled people doing the same job, then it could be said that the duty does not arise, because it is her disability rather than council's arrangements which has 'that effect' and there is nothing that the council can do in a case such as this to prevent its doing so. On the other hand, if they are not confined to non-disabled people doing the same job, then there may be things the council could do to prevent the job description having the effect of her being at a substantial disadvantage from others. In some cases they might be able to change or modify the job description. In others they might be able to transfer her to another job, a possibility expressly contemplated by section 6(3)(c). The former argument is difficult to reconcile with the inclusion of section 6(3)(c) as an example of what might be done. If one is only concerned with the particular job, one would not be contemplating transfer as the sort of step which might be required under section 6(1) (as opposed to offered as an act of benevolence). The former argument also involves reading words into section 6(1) which are not there. It is of interest that the Court of Appeal in Clark v Novacold Ltd [1999] ICR 951 declined to read into 'others' in section 5(1)(a) any requirement that those others should be otherwise in similar circumstances to the disabled person. For the reasons already explained, this Act does not require the sort of 'like for like' comparison which is involved in the Sex Discrimination and Race Relations Acts. I conclude, therefore, that the duty is triggered where an employee becomes so disabled that she can no longer meet the requirements of her job description.

    65.  The duty is to take such steps as it is reasonable in all the circumstances of the case for the employer to have to take. Could this ever include transferring her to fill an existing vacancy at a slightly higher grade without competitive interview? It is noteworthy that the council did do a great deal to help Mrs Archibald. They arranged retraining for her. They kept her on the books for a great deal longer than they normally would have done while she retrained and then looked for alternative posts. They automatically short-listed her for the posts for which she applied. They went rather beyond their normal policies in cases of redundancy or ill-health. They were behaving as if they did have a duty towards her under section 6(1) even if they did not think that they did. They would have been prepared to transfer her without competitive interview to another job at the same or a lower grade, even though there might be others better qualified to do it. But as she was at the bottom of the manual grade and all office jobs were nominally at a higher grade, there was no equal or lower grade job to which she could be transferred.

    66.  Section 6(3)(c) merely refers to 'an existing vacancy'. It does not qualify this by any words such as 'at the same or a lower grade'. It does refer to 'transferring' rather than 'promoting' her, but as a matter of language a transfer can be upwards as well as sideways or downwards. Furthermore, transferring her 'to fill' an existing vacancy is clearly more than merely allowing her to apply, short-listing or considering her for an existing vacancy. If that were all it meant, it would add nothing to the existing non-discrimination requirements: the employer is already required by section 4(2)(b) not to discriminate against a disabled employee in the opportunities afforded for promotion, transfer, training or any other benefit.

    67.  On the face of it, therefore, transferring Mrs Archibald to a sedentary position which she was qualified to fill was among the steps which it might have been reasonable in all the circumstances for the council to have to take once she could no longer walk and sweep. Is there any reason to hold to the contrary?

    68.  The Employment Tribunal thought that there was. They relied upon that part of section 6(7) which provides that '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'. But this is prefaced by the words, 'Subject to the provisions of this section, . . .': so that, to the extent that the duty to make reasonable adjustments requires it, the employer is not only permitted but obliged to treat a disabled person more favourably than others.

    69.  There is another possible reason to the contrary in the case of a local authority employer such as this. Section 7 of the Local Government and Housing Act 1989 requires all staff engaged by a local authority to be appointed 'on merit'. This is an extremely important principle. Regrettably, local government does offer opportunities for corrupt appointment practices which have on occasions resulted in people being appointed who were not even competent, let alone the best person available, to do the job. Advertisement and competitive interview is one way of securing that appointments are made on merit. But this is not the only way of doing so. Furthermore, this obligation has always been subject to the requirements of the law relating to disabled persons. When the 1989 Act was passed, it was subject to the quota requirement in the Disabled Persons (Employment) Act 1944. This meant that a person who did not qualify 'on merit' might have to be appointed to fill the quota. Now that the 1944 Act has been replaced by the 1995 Act, the duty in section 7(1) is (in section 7(2)(f)) made subject to sections 5 and 6 of the 1995 Act. Thus local government appointments must always be on merit, subject to the duty to make reasonable adjustments. Usually, those will be reasonable adjustments in the post which is being offered so as to make it accessible to a disabled applicant. But section 7(2)(f) refers generally to sections 5 and 6, so that it is capable of including the step of transferring a disabled person from a post she can no longer do to a post which she can do, provided that this is a reasonable step for the employer to have to take.

    70.  This will depend upon all the circumstances of the case, having regard in particular to the factors laid down in section 6(4). An important component in the circumstances must be the council's redeployment policy. This currently distinguishes between transfer to a post at the same or a lower grade and transfer to a post at a higher grade. Generally it must be reasonable for a council to maintain this distinction. But it might be reasonable to expect a small modification either in general or in the particular case to meet the needs of a well-qualified and well-motivated employee who has become disabled. Manual grades are often technically lower than non-manual grades even if the difference in pay is minimal. The possibility of transfer to fill an existing vacancy might become completely illusory for a manual worker who became incapable of manual work but was assessed as very well fitted for low grade sedentary work if that person was always up against the problem presented by her background. We are not talking here of high grade positions where it is not only possible but important to make fine judgments about who will be best for the job. We are talking of positions which a great many people could fill and for which no one candidate may be obviously 'the best'. There is no law against discriminating against people with a background in manual work, but it might be reasonable for an employer to have to take that difficulty into account when considering the transfer of a disabled worker who could no longer do that type of work. I only say 'might' because it depends upon all the circumstances of the case. While the 1995 Act clearly lays great emphasis on the circumstances of the individual case, the general policy of achieving fairness and transparency in local government appointments is also extremely important. The real question may be whether this case should have been seen as a sideways rather than an upwards move.

    71.  None of this was considered by the Employment Tribunal, which disposed of the case on a ground which was clearly wrong. They did not address the question of reasonableness. They did address the question of justification under section 5(2)(b), but did so without the benefit of the Court of Appeal's decision in Collins v National Theatre [2004] EWCA Civ 144 that the justification must be something other than the circumstances which are taken into account for the purpose of section 6(1). As the council's redeployment policy is an important part of those circumstances, it should not be independently relevant as a justification under section 5(2)(b).

    72.  For these reasons, essentially the same as those given by my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry, I would allow the appeal and remit the case to the Employment Tribunal so that it can consider whether the council fulfilled its section 6(1) duty to take such steps as it was reasonable in all the circumstances for the council to have to take.

Costs

    73.  As I have indicated, the tribunal will have quite a difficult exercise to undertake and it is not for this House to predict the ultimate outcome. This was a test case on a point of principle which the Commission wished to have resolved whatever the outcome of the individual case. If we were to make an order for 'costs in the cause' this would ignore the fact that the Commission have succeeded on the main point of principle which they wished to have accepted. In those circumstances the fairest result is that there be no order for costs or expenses either in this House or in the court below. There were, of course, no orders for expenses in the Employment Tribunal or in the Employment Appeal Tribunal.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    74.  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. For the reasons each of them gives, with which I agree, I too would allow this appeal.

 
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