Archibald v Fife Council

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

[2004] UKHL 32


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

Fife Council



My Lords,


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.


My Lords,


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.


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."


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.


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.


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."


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.


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.


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."


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).


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.


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.


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.


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.


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.


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.


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...

To continue reading

Request your trial
122 cases
  • Makuchova v Guoman Hotel Management (UK) Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 14 April 2016
    ...sufficient if carried through in an appropriate manner. 7 The Employment Tribunal was referred to the case of Archibald v Fife Council [2004] ICR 954, a case in which a road sweeper was physically unable to do her old job and it was simply incapable of adjustment, but the tribunal distingui......
  • Nano Nagle School v Daly
    • Ireland
    • Supreme Court
    • 31 July 2019, losing those attributes through an accident means the loss of the trade. English authorities including Archibald v Fife Council [2004] UKHL 32 and Jelic suggest that redeployment is part of the duties of an employer in England and Wales under the relevant legislation in force at the......
  • R Friends of the Earth England, Wales and Northern Ireland Ltd v The Welsh Ministers
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 26 March 2015 take in order to prevent the arrangements or feature having that effect." As Baroness Hale explained in Archibald v Fife Council [2004] UKHL 32 (at [57]), that entailed a measure of positive discrimination, in the sense that it imposed a positive duty on the employer to take steps t......
  • FirstGroup Plc v Paulley
    • United Kingdom
    • Supreme Court
    • 18 January 2017
    ...example, MM v Secretary of State for Work and Pensions [2013] EWCA Civ 1565; [2014] 1 WLR 1716, para 35, citing Archibald v Fife Council [2004] UKHL 32; [2004] ICR 954, paras 47, 57, and Roads v Central Trains Ltd (2004) 104 Con LR 62, para 30). 95 However, the general duty to make reasona......
  • Request a trial to view additional results
2 firm's commentaries
  • Employment Law Bulletin — [2007] ELB 116
    • New Zealand
    • Mondaq New Zealand
    • 12 December 2007
    ...WL Dearsley, Members). 4 Director of Human Rights Proceedings v NZ Thoroughbred Racing Inc [2002] 3 NZLR 333. 5 Archibald v Fife Council [2004] UKHL 32; [2004] IRLR 651; [2004] 4 All ER 6 Smith v Churchill Lifts Plc [2005] EWCA Civ 1220; [2006] ICR 524; [2006] IRLR 41. 7 Collins†v Royal Nat......
  • Disability Discrimination Update
    • United Kingdom
    • Mondaq United Kingdom
    • 22 February 2005
    ...that these new rights are properly used in all appropriate cases. Footnotes Income Data Services Regulatory Impact Assessment No 2000/78 [2004] UKHL 32 [2004] EWCA Civ 859 The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be s......
7 books & journal articles
  • The curious case of marriage/civil partnership discrimination in Britain
    • United Kingdom
    • International Journal of Discrimination and the Law Nbr. 12-3, September 2012
    • 1 September 2012
    ...sexual orientation regarding private associations.10. By means of the Civil Partnership Act 2004, s. 251(2).11. Archibald v Fife Council [2004] UKHL 32, [47] (Baroness Hale).12. To use the phrase of Dinah Rose QC adopted by Baroness Hale in Seldon v Clarkson Wrightand Jakes [2012] UKSC 16, ......
  • Defining the limits of discrimination law in the United Kingdom
    • United Kingdom
    • International Journal of Discrimination and the Law Nbr. 15-1-2, March 2015
    • 1 March 2015 148–152.65. See, for example, the justifications offered by both the majority and the minority in Re (E) v.Governing Body of JFS [2004] UKHL 32. See also C. McCrudden, ‘Multiculturalism, Free-dom of Religion, Equality, and the British Constitution: The JFS Case Considered’, Interna-tiona......
  • Broadening the Scope and the Norms of EU Gender Equality Law: Towards a Multidimensional Conception of Equality Law
    • United Kingdom
    • Maastricht Journal of European and Comparative Law Nbr. 12-4, December 2005
    • 1 December 2005
    ...326. Baroness Hale in Archibald v Fife Council,stating that ‘men and women, black and white are the opposite sides of the same coin’ [2004] IRLR 651.90Inghammar, ‘Discrimination of People with Disabilities’, Of course, gender and ethnicity are just asdiverse. The normative assumption that y......
  • Unconscious bias and the medical model: How the social model may hold the key to transformative thinking about disability discrimination
    • United Kingdom
    • International Journal of Discrimination and the Law Nbr. 19-1, March 2019
    • 1 March 2019
    ...and RBS v. Ashton [201 1] ICR 632. This dutyhas been extended to the essential elements of the job as demonstrated in Archibald v. Fife[2004] UKHL 32.17. [2013] UKEAT 0097/12/0802.18. [2014] EUECJ C-354/13.19. The strict approach contained in the DDA 1995 required that the mental impairment......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT