Archibald v Fife Council
| Jurisdiction | Scotland |
| Judgment Date | 09 December 2003 |
| Date | 09 December 2003 |
| Docket Number | No 40 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Employment law - Whether failure to redeploy employee who became disabled without requirement for competitive interviews amounted to discrimination - Disability Discrimination Act 1995 (cap 50)
Statutory interpretation - Construction of section - 'Arrangements' - 'Term, condition or arrangements' - 'Transferring him to fill an existing vacancy' - Disability Discrimination Act 1995 (cap 50), sec 6
Section 5(2) of the Disability Discrimination Act 1995 provides that an employer discriminates against a disabled person if he fails to comply with a sec 6 duty imposed on him in relation to that person, and cannot show that his failure to comply with that duty is justified. Section 6 provides, inter alia: '(1) Where - (a) any arrangements made by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect. (2) Subsection (1)(a) applies only in relation to - … any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.' Section 6(3) provides examples of steps which an employer may have to take in order to comply with subsec (1), and includes 'transferring him to fill an existing vacancy.' Section 6(7) provides: 'Subject to the provisions of this section, 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'.
An employee became unable to walk as a result of a complication following a minor operation. She was unfit to continue to work as a road sweeper, but sought redeployment to a sedentary job within the local authority where she was employed. However, all such posts were graded more highly than road sweeping, and her employers' redeployment policy accordingly required her to undergo competitive interviews. After she had applied unsuccessfully for over 100 posts, her employment was terminated by her employers. The employee raised proceedings in the employment tribunal, claiming that she had been unlawfully discriminated against. She argued that her employers were in breach of a sec 6 duty in that they had failed to transfer her to fill an existing vacancy, and required her to undergo competitive interviews. It was accepted by the parties that the employee was a disabled person within the meaning of the Act. The employment tribunal held that the employer had not failed to comply with any sec 6 duty, and that in any event, such failure was justified. The employee appealed to the Employment Appeal Tribunal, which found that the 'arrangement' referred to in sec 6 was the employer's redeployment policy which required competitive interviews for higher graded posts. It held that no sec 6 duty was imposed on the employer, and that its policy, even if discriminatory, could be justified on the basis that it was designed to obtain the best person for the job. It further held that the purpose of the legislation was to place disabled people in an equal position with the able bodied, and that to find in favour of the employee would be to place her in a more favourable position than an able bodied person, and would be contrary to the purpose of the legislation. The employee appealed to the Court of Session, and argued that both tribunals had erred in law and that 'arrangements' in the present case meant the contractual terms and conditions which applied to the appellant's employment at the time when she became disabled. She argued that the respondents were under a duty to take such steps as were reasonable to prevent the arrangements from placing the employee at a disadvantage, such as by transferring her to a sedentary job. The employer argued that the requirement for competitive interviews did not involve discrimination, and that the scope of sec 6 did not extend to transferring an employee to an entirely different job.
Held that: (1) 'arrangements' in sec 6 included contractual arrangements in the form of terms and conditions, provided they could be made or not made by the employer as he chose (paras21, 35); but (2) incapacity to perform at all the job for which the employee was employed was fundamental, and was not a 'term' or 'condition' of the contract in the sense intended by the legislation (paras 25, 35); (3) the duty under sec 6 did not extend to affording the employee a completely different job, and accordingly no such duty was imposed on the respondents (paras 27, 37, 44); and appeal refused.
Observed that the basic statutory objective was that disabled persons should be treated neither more nor less favourably than others, although incidentally the operation of sec 6 might require an employer to treat a disabled person more favourably than others (paras 29, 38).
Observed that the purpose of the code of practice was to give practical guidance, and it could not be used as an aid to the interpretation of the legislation (para 20).
SUSAN ARCHIBALD brought proceedings against Fife Council in the employment tribunal alleging unlawful discrimination under the Disability Discrimination Act 1995. The tribunal found against her and dismissed her application. She appealed to the Employment Appeal Tribunal, which refused the appeal. She appealed to the Court of Session.
The full facts and averments of the parties are sufficiently set forth in the opinions of their Lordships.
Cases referred to:
Cave v Goodwin, CA, 14 March 2001, unreported
Chancellor (Lord) v CokerICR [2002] ICR 321
Clark v Novacold LtdUNK [1999] 2 All ER 977
Goodwin v Patent OfficeICR [1999] ICR 302
Kent County Council v MingoUNK [2000] IRLR 90
Morse v Wiltshire County CouncilUNK [1998] IRLR 352
Pepper v HartELR [1993] AC 593
Post Office v JonesICR [2001] ICR 805
Retarded Children's Aid Society v DayWLR [1978] 1 WLR 763
Ridout v TC GroupUNK [1998] IRLR 628
Textbooks etc referred to:
Department for Education and Employment, Code of Practice, 2 Dec 1996
The cause called before an Extra Division, comprising Lord Hamilton, Lord Macfadyen and Lord McCluskey for a hearing on the summar roll, on 4 and 5 November 2003.
At advising, on 9 December 2003
LORD HAMILTON -
[1] The appellant was employed by the respondents as a road sweeper Grade 1 throughout the continuous period from May 1997 to 12 March 2001. She was engaged initially on a six-month seasonal contract but thereafter on a full-time basis as one of some 150 manual workers engaged in refuse collection, the cleaning of public toilets, road sweeping and similar tasks. In April 1999 the appellant had a spinal anaesthetic for a minor surgical procedure which resulted in a very rare complication of severe pain over her heels; as a result she was unable to walk. This medical misfortune rendered her unfit to continue her work as a road sweeper.
[2] In accordance with their Attendance Management Guidelines the respondents sought and obtained medical advice as to the prospects of the appellant being fit to return to work. Steps were also taken to explore whether suitable alternative employment might be offered to her by them, including in other departments within their organisation. With the assistance of information provided by officials of the respondents the appellant over a period of many months applied for over 100 alternative posts within the respondents' various departments. In none of these applications was she successful. Her principal difficulties during that period were that, initially being confined to a wheelchair and later requiring sticks to assist her mobility, she was unable to meet the physical demands of the posts applied for or the environmental constraints in which they were to be performed. In addition, as a road sweeper, she was on industrial Grade 1 and all the alternative posts for which she applied were posts on which the lowest grade (known as APT&C Grade 1) was, in terms of basic salary, marginally higher than industrial Grade 1. The result was that in terms of the respondents' redeployment policy the appellant invariably required to undertake competitive interviews. A further problem which she apparently faced was that, coming from an industrial background and attempting to obtain alternative work in an office environment, she received (or in any event perceived that she received) less favourable treatment at interview, notwithstanding that she had during her absence from work undertaken a number of computer and administration based courses in an attempt to equip herself with the appropriate skills to work in an office environment.
[3] Meantime the respondents continued to seek and obtain information about the appellant's medical position and her fitness for work. By letter dated 10 July 2000 it was reported to them that she remained unfit for work as a road sweeper but that she was fit for work of a sedentary nature; the view was expressed that she was a disabled person within the meaning of the Disability Discrimination Act 1995. The search for suitable alternative employment continued. At one of several meetings concerned with furthering that search, the appellant's Trade Union representative expressed the view that the appellant ought not to have to go through competitive interviews. This view, it seems, was not shared by the respondents. Ultimately at a meeting held on 12 March 2001 the respondents' responsible officer expressed the view that, on the basis of medical advice obtained, the appellant would be unable to return to work as a road sweeper in the foreseeable future, that the respondents' redeployment procedure had been exhausted and that, having regard to the length of the...
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Archibald v Fife Council
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