disability discrimination: roles ought to have been swapped as
a reasonable adjustment
A failure to make reasonable adjustments for an employee who is
disabled under the Disability Discrimination Act 1995 (DDA) has
become increasingly important for claimants in the light of a House
of Lords Decision in 2008 (London Borough of Lewisham v Malcolm)
which restricted the scope of disability-related discrimination.
The duty to make reasonable adjustments arises where a provision,
criterion or practice (PCP), or physical feature of a premises,
puts the disabled person at a substantial disadvantage compared
with others. The employer has to take steps that are objectively
considered reasonable to prevent the disadvantage. Examples of
reasonable adjustments appear in the DDA itself, but the EAT has
recently concluded that it may include swapping the roles of a
disabled employee and a non-disabled employee, so that the disabled
employee can continue in employment.
After 5 years' uneventful service in the police force, Mr Jelic
developed chronic anxiety syndrome. It was recommended that he work
reduced hours in a non-confrontational officer role. After
gradually increasing his hours, he continued in this "recuperative"
role for 3 years. However, it was not likely that he would return
to front-line police officer duties before retirement, and with
very little consultation he was retired on medical grounds. He
brought an Employment Tribunal claim for failure to make reasonable
adjustments. The EAT agreed with the ET that reasonable adjustments
ought to have been made. Maintaining the recuperative role was not
a reasonable adjustment in view of the changing needs of the unit
and the civilianisation of roles not requiring a police officer,
but Mr Jelic could have been swapped into the role of another
police officer. The other role was very similar and the nature of
the police force meant that the officer could have been ordered to
move into Mr Jelic's public-facing role. Each case depends on its
facts, including the skills and circumstances of the non-disabled
employee. However employers should be aware of this potential
reasonable adjustment in suitable cases.
Although the effect of Malcolm is to be changed under the
Equality Act 2010, the concept of reasonable adjustments remains in
a form very similar to that under the DDA.
