Employment Alert No. 114: Employers Fixed with Constructive Knowledge of Disability
January 4, 2006
| What is the Issue? |
Under the Disability Discrimination Act 1995 (the “DDA”), employers are required to make reasonable adjustments to their premises or practices to ensure that employees with disabilities are not placed at a “substantial disadvantage” in comparison with those who are not disabled.
In the recent case of Southampton City College v Randall, the EAT considered whether the duty to make reasonable adjustments extends to the creation of a new job for a disabled employee.
| What has the EAT decided? |
The EAT decided that the creation of a new position for an employee may be a reasonable adjustment under the DDA. However, whether an employer is obliged to create a new position will depend on the facts of the case.
In this case, R, a college lecturer, suffered a voice breakdown and was no longer able to lecture to large groups of students in a noisy atmosphere (part of his job). R had known about his voice problem for some time and had raised it with the College, but nothing had been done.
Soon after R’s voice breakdown, while he was on sick leave, a restructuring took place and R was told that he was at risk of redundancy. The manager in charge of the restructure had a “blank sheet of paper” in terms of job specifications. As part of the restructure, a co-ordinating lecturer role, which was similar to R’s role, was created and advertised. R applied for the role, but no one was appointed. The role was re-advertised and, finally, one of R’s colleagues was appointed. R was offered ill health retirement as an alternative to redundancy, but resigned and claimed constructive dismissal.
The EAT held that the Respondent had failed to consider making reasonable adjustments to its premises and practices to accommodate R’s disability. The Tribunal had found that it would have been possible to “devise a job which would take account of the effects of his disability, but harnessed the benefits of his long career and successful record…”. The EAT held that, on the facts of the case, and especially given the flexibility that the employer had to create new jobs, it was open to the Tribunal to conclude that the creation of a new position was a reasonable adjustment.
| What does this mean for employers? |
When considering what adjustments might be reasonable for it to make, an employer should not simply ignore the creation of a new job as an option.
In most circumstances it will almost certainly not be reasonable for an employer to create a new position, given the cost, administration, organisational upheaval and productivity implications that would result. However, in a situation, as here, where an employer has “carte blanche” to rearrange its workforce and to create new roles, the creation of a position which will enable a disabled employee to be retained in employment should be seriously considered.
