Archibald v Fife Council

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD NICHOLLS OF BIRKENHEAD
Judgment Date01 Jul 2004
Neutral Citation[2004] UKHL 32
Docket NumberNo 6

[2004] UKHL 32

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

Archibald
(Appellant)
and
Fife Council
(Respondents)

(Scotland)

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

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. I agree that for the reasons they give, which in all essential respects are to the same effect, this appeal should be allowed.

LORD HOPE OF CRAIGHEAD

My Lords,

2

I have had the advantage of reading in draft the speech of my noble and learned friend, Baroness Hale of Richmond. Subject to the following observations, I agree with it. I too would allow the appeal and remit the case to the Employment Tribunal.

3

Mrs Archibald's complaint of unfair dismissal and of discrimination under the Disability Discrimination Act 1995 was presented in her application to the employment tribunal in these terms:

"I feel that I was unfairly dismissed by Fife Council with effect from 12 March 2001 on the grounds of capability. As I am a disabled person in accordance with the terms of the Disability Discrimination Act 1995, I am of the opinion that I have been discriminated against by the council in the way that they sought redeployment opportunities for me."

4

I agree with my noble and learned friend Lord Rodger of Earlsferry that it is important, before examining the discrimination issue and to put it into its correct context, to identify the correct starting point. Section 8(1)(a) of the 1995 Act provides that there may be presented to an employment tribunal a complaint by any person that another person has discriminated against him in a way that is unlawful under Part II of the Act. Section 8(2) sets out the remedies that the tribunal may grant to the complainant if it finds that a complaint presented to it under the section is well founded.

5

The circumstances in which it is unlawful for an employer to discriminate against an employed person are set out in section 4(1) and (2) of the Act. Section 4(1) deals with discrimination by an employer against a disabled person in regard to offers of employment. Section 4(2) deals with discrimination by an employer against a disabled person whom he employs. The appellant was already in the employment of the council when she became disabled. So the basis for her complaint of discrimination must be found in section 4(2). Section 4(2)(d) provides that it is unlawful for a person to discriminate against a disabled person whom he employs by dismissing him.

6

The tribunal's approach to the complaint under the 1995 Act is indicated by the following passage which appears at p 8 of the extended reasons for their decision:

"As we understood the applicant's position, she did not seek to maintain that the dismissal itself amounted to unlawful discrimination in terms of section 4 of the 1995 Act but rather that in terms of section 5 of that Act discrimination had occurred here which was not justified and that, more particularly, the respondents had failed in their duty to make reasonable adjustments in terms of section 6 of the 1995 Act."

7

It is important however to appreciate that the only function of section 5 is to define what is meant by the word "discriminate" where it appears in section 4 of the Act. Section 5 is not, of course, unimportant. But it is to section 4 that one must go first in order to discover whether the employer's act was an unlawful act which entitled the complainant to apply to the employment tribunal for a remedy. The first step, then, is to identify the act which is said to have been unlawful. As I understand Mrs Archibald's case, it is the act which the council took on 12 March 2001 when it dismissed her from its employment because she was physically unable to do her job as a road sweeper.

8

An act of dismissal is only unlawful for the purposes of the 1995 Act if the employer discriminates against the disabled person by doing so. This proposition directs attention to sections 5 and 6 of the Act which Lady Hale has analysed. The steps by which the heart of the complaint in this case is reached are to be found in subsections (1), (3) and (5) of section 5.

9

At first sight, since the heart of the complaint lies in section 6, this appears to be a case of discrimination under section 5(2) which provides that an employer "also" discriminates against a disabled person if he fails to comply with a section 6 duty imposed on him in relation to the disabled person and he cannot show that his failure to comply with that duty is justified. But this was not a case about any physical features of premises occupied by the employer: see section 6(1)(b). And section 6(2) provides that section 6(1)(a), which refers to any arrangements made by or on behalf of an employer, applies only in relation to (a) arrangements for determining to whom employment should be offered – which is not this case – and

"(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded."

10

So the question is, in terms of section 5(1) read with section 5(3), whether the council can show that they were justified in dismissing Mrs Archibald for a reason related to her disability. The result of their dismissal of her on this ground was that, because of her disability, they treated her less favourably than they would have treated others in their employment who were not disabled from doing the job they were employed to do. They will not be able to show that their treatment of her was justified if they would not have been justified in dismissing her if they had complied with their duty under section 6 to make adjustments to prevent her disability having that effect: see section 5(3).

11

Mrs Archibald was employed by the council as a manual worker. It was an implied "condition" or an "arrangement" of her employment within the meaning of section 6(2)(b) that she should at all times be physically fit to do her job as a road sweeper. She met this requirement when she entered the council's employment on 6 May 1997. She underwent minor surgery in April 1999 as a result of which she became disabled. As a result she was no longer physically fit to do this job. This exposed her to another implied "condition" or "arrangement" of her employment, which was that if she was physically unable do the job she was employed to do she was liable to be dismissed.

12

Her disability placed her at a substantial disadvantage in comparison with others in the same employment who were not at risk of being dismissed on the ground that, because of disability, they were unable to do the job they were employed to do. These persons, a limited class, were her "comparators". There was nothing that the council could have done by way of adjustment to the manual labour job to cure that fact that she was unable to do that job due to her disability. But she was not so disadvantaged that she could not conceivably have been employed by them at all. If she had been given a job to do which she was physically able to do, the disadvantage which she was under in comparison with others in the same employment who were not at risk of being dismissed on the ground of disability would have been removed.

13

So the question comes to be whether there were steps which the council could have taken by way of adjustment to the conditions of her employment to remove the disadvantage which she was under because she was at risk of dismissal because she was unable to do the job she was employed to do because of her disability.

14

The council, very commendably, went to considerable lengths to help her find an alternative position within their own organisation for which she was suited which did not involve the use of manual labour. Section 6(3)(c) shows that this kind of adjustment was within the scope of the duty which the council were under in these circumstances. This paragraph includes, as an example of the steps that may be taken by way of adjustment, "transferring" the disabled person to fill another vacancy. A purposive meaning is to be given to the word "transferring" in this context. It is to be borne in mind that it is, after all, only an example. It is not be read as restricting the adjustment which is contemplated to a post on the same pay grade or at the same level of seniority.

15

The duty which rested on the council under section 6(1) is described in the side note to section 6 as a duty to make adjustments. But it is not simply a duty to make adjustments. The making of adjustments is not an end in itself. The end is reached when the disabled person is no longer at a substantial disadvantage, in comparison with persons who are not disabled, by reason of any arrangements made by or on behalf of the employer or any physical features of premises which the employer occupies.

16

As the determination of the employment tribunal makes clear, a substantial number of adjustments to the normal procedures were made in Mrs Archibald's case. Some of them involved positive discrimination in her favour, such as her automatic short listing for the available posts. This was within the scope of the duty, as it was necessary for the council to redress the position of disadvantage that she was in due to her disability. The crucial question is whether the council should have taken one more step and simply transferred her to a sedentary job for which she was suitable, or at least dispensed in her case with the need for competitive interviews.

17

The requirement for competitive interviews seems to have had its origin in section 7(1)(b) of the Local Government and Housing Act 1989, which provides...

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