Labour exchange

The Disability Discrimination Act 1995 (DDA) imposes a duty on employers to make reasonable adjustments to their premises, or working practices, so as not to place disabled employees, or applicants, at a disadvantage, compared to their non-disabled colleagues or competitors. Failure to comply with this duty will amount to disability discrimination. Whether or not there has been a breach of the duty to make adjustments in a particular case will depend on an employment tribunal's objective determination of what is reasonable in the circumstances. The DDA lists several actions that an employer may consider taking to comply with the duty of reasonable adjustment. The guidance in this list is supplemented by the Disability Rights Commission's Code of Practice for Employment and Occupation ('the Code'). Despite this guidance, there has been much dispute as to the scope of the legal obligation to make reasonable adjustments. To date, the employment appeal tribunal (EAT) has held that the duty could extend as far as transferring a disabled employee from a job she could no longer do to fill a vacancy for a significantly more senior role – without the need for a competitive interview – to requiring an employer to create a new post for a disabled employee to avoid terminating the employment. In the recent case of Chief Constable of South Yorkshire v Jelic, the EAT returned to the issue of reasonable adjustments to consider whether the duty could include requiring employers to swap the job of a disabled employee with that of a non-disabled employee. It concluded that, in certain circumstances, it could. PC Jelic worked for South Yorkshire Police (SYP). He was diagnosed with chronic anxiety syndrome and assessed as unfit for active duties. After a long absence with a stress-related illness, Jelic returned to work in a non-public facing role within SYP's safe neighbourhood unit. He performed well in this role, until the unit's work changed and meant police officers assigned to the unit needed to have more interaction with the public. A medical assessment confirmed that Jelic would be unable to perform the public-facing role, so he was retired on medical grounds. He brought a claim of disability discrimination, in respect of his enforced retirement. The employment tribunal upheld his claim, on the grounds that SYP had failed to make 'reasonable adjustments' to accommodate his disability. The tribunal identified two specific reasonable adjustments that it believed the SYP had failed to make: l First, the tribunal found that SYP could have swapped Jelic's role for that of a non-disabled officer in a similar role, but one that did not involve dealing face to face with the public. l Secondly, the tribunal found that SYP could have allowed Jelic to retire on medical grounds, receive his police pension and then re-employed him as a civilian member of staff, which would not have required him to undertake additional public-facing policing duties. SYP appealed against the decision, on the grounds that the suggested options were outside the scope of the DDA and would have had adverse practical implications. On appeal, the EAT agreed with the tribunal's decision that SYP had failed in its duty to make reasonable adjustments by not swapping Jelic's role with that of a non-disabled colleague. However, the EAT emphasised that swapping would not be appropriate in every situation and that, when it came to the issue of reasonable adjustment, each case would turn on its own facts. A key reason that swapping was considered to have been a reasonable adjustment in this case was that SYP had the power to compel a non-disabled police officer to swap roles. Another employer may well have been able to convince a tribunal that enforced job swapping was not reasonable. However, employers would be wise actually to explore the option of a potential job swap and consult with potential non-disabled employees before ruling the option out completely. The EAT allowed the appeal against the finding that retirement and re-employment would have been a reasonable adjustment, on the basis that the tribunal's decision had been inadequately explained – but, interestingly, it did not rule out retirement and re-engagement in a new role as a potential reasonable adjustment in other circumstances. This case emphasises that the scope of the duty to make reasonable adjustments for disabled employees cannot be precisely defined. It is certainly broader than those suggested adjustments which are set out in the DDA. The DDA and the Code should be viewed as examples of what could amount to reasonable adjustments, not an exhaustive list. Clearly, the courts are expecting employers to think creatively when considering reasonable adjustments – and this is likely to become more widespread when the Equality Act 2010 comes into force later this year. Ruth Nodder is principal legal adviser at the manufacturers' organisation EEF: www.eef.org.uk