Chapter 16Employing labourthat the nature of the disability substantially affects the
disabled person’s ability to perform the required task.
Reasonableness is of course related to practicability in
terms of how useful the adjustments will be and the cost
and the ability of the organisation to meet them. The
value of the employee, which includes training, skill and
service, is also a relevant factor. Thus a high-cost adjust-
ment might be required as reasonable for a long-serving
managing director but not for a temporary cleaner.
In this regard, an employment tribunal accepted the
defence of justification in KellyvHampshire Constabulary
(1997). The claimant suffered from cerebral palsy and so
needed help in various ways including eating and using
the toilet. The employers offered him employment on
the basis that they would try to make the necessary
arrangements to accommodate him. The employers
were later able to satisfy a tribunal that, although they
had made every effort to do this, it was impossible for
them to accommodate him and because of this they
were held not to have discriminated when the employ-
ment did not continue.
It is, or course, important that the employer be aware
of the disability. See O’Neillv Symm & Co Ltd(1998),
where the employers were not liable for the dismissal of
an accounts clerk suffering from ME because they had
not been aware of the nature of her illness and so could
not have treated her less favourably than an employee
who did not have this disability. The dismissal was for
the amount of sick leave taken and non-production of a
doctor’s certificate, which the contract of employment
required. In addition, the employers had not infringed
the requirement of the Act to take all reasonable steps to
find out about the disability since in the circumstances
of the case there was nothing to put the employers on
inquiry. Where, however, the employer is aware of facts
which put him on inquiry, the matter may be different.
Duty to make adjustments
Section 6 includes 12 examples of steps, e.g. altering work-
ing hours, acquiring or modifying equipment, arranging
for training and providing supervision, an employer may
have to take so as to comply with a new duty to make
reasonable adjustments to working arrangements or the
physical features of premises where these constitute a
disadvantage to disabled persons. However, s 6 specifies
that regard shall be had to the extent to which it is prac-
tical for the employer to take the steps involved, the
financial and other costs to be incurred and the extent of
any disruption to the employer’s activities and his finan-
cial and other resources. Section 16 contains provisions
relating to adjustments in leasehold premises. The ten-
ant employer must seek the consent of the landlord. The
latter must not withhold consent unreasonably.
It is important to understand that the employer is
only required to make adjustments if possible in terms
of the job that the disabled person is employed to do.
The duty does not extend to offering different types
of employment contracts within the organisation and
without competition from other applicants. Thus, in
Archibaldv Fife Council(2004) Ms Archibald was a
road sweeper. She had an accident and became unable to
walk. The employer allowed her to apply for other posts
within the organisation which were sedentary but it
allowed others to apply and Ms Archibald was unsuc-
cessful. She was later dismissed on the ground of incap-
acity and claimed discriminatory dismissal. She lost
her claim before an employment tribunal and the EAT.
The Scottish Court of Session also refused an appeal.
It was, of course, impossible to adjust and modify Ms
Archibald’s contract as a road sweeper because it is an
irreducible minimum requirement that a road sweeper
under Ms Archibald’s type of contract should be able
to walk. Given that no adjustment can be made, the
employer has no further duty to provide alternative
employment said the court.537H J Heinzv Kenrick(2000)K was dismissed after a long period of sickness absence.
His employers knew of his symptoms and that ME was
a disability within the scope of the DDA 1995. They did
not know, however, the exact nature of the reason
behind his absence when they dismissed him. The EAT
did not follow its earlier decision in O’Neilland in fact
doubted it. The employers’ lack of precise knowledge as
to absence was no defence and K’s dismissal was unlaw-
ful as a dismissal based on disability discrimination.Comment. The result of this case in terms of employers
is that where an employee has been absent for sickness
for a reasonable amount of time and it appears that this
will continue, it is prudent for the employer to start ask-
ing more questions about the reasons for that absence.
Failure to do so could result in a disability claim where
there is no cap on compensation by reason of the em-
ployer’s own inaction or lack of knowledge.