Making reasonable adjustments is the cornerstone of the disability provisions of the Equality Act 2010. Section 20 of the Act sets out how this duty applies. The Equality and Human Rights Commission Statutory Code on Employment is especially useful on explaining how this works in practice. Chapter 6 explains how the law works and gives plenty of examples.
In Mr Raymond Cairns v The Royal Mail Group Ltd, Raymond Cairns was a postman on outdoor duties working for the Royal Mail Group. He sustained a knee injury and osteoarthritis which amounted to a disability. He had to stop working outdoors and was moved to an indoor role for a period of time.
Royal Mail began a capability process to dismiss him on the grounds of incapacity and to place him on ill-health retirement. They did so because he could no longer fulfil the essential requirements of his role which absent disability would entitle his employer to capability dismiss him. This was because he could no longer do his outdoor job which was the job he was hired to do. At the time, Royal Mail said that no other indoor vacancy existed. The Claimant was therefore dismissed.
Mr Cairns brought claims for unfair dismissal, failure to make reasonable adjustments and section 15 discrimination arising in consequence of disability.
He argued in his claim that had The Royal Mail Group made adjustments this would have allowed him to continue in employment. He said that failing to wait for the imminent merger of the his postal centre with another centre, which would have created indoor roles, was a failure to make reasonable adjustments and discrimination arising from a disability. A first instance employment tribunal dismissed all of his claims, holding that there comes a time when an interim job must come to an end.
He appealed the outcome on discrimination. The Employment Appeal Tribunal (EAT) agreed with him and allowed his appeal. The EAT held that the tribunal had focused too much on the situation at the time of dismissal. In doing so, it had failed to consider an essential part of the claimant’s case which was that at the time of his internal appeal against dismissal, the Respondent could have kept him in employment so that he could be assigned to an indoor role once the two postal offices had merged.
The EAT agreed with the claimant that it would have been a reasonable adjustment to keep him in employment for a short time longer to allow his employment to continue. This had been a reasonable adjustments failure.
Mr Cairns also argued that his inability to work outdoors arose from his disability and that the decision to dismiss him because of his inability to work outdoors which was connected to disability was discriminatory. His section 15 case succeeded. Section 15 discrimination is not a strict liability provision. The employer can argue that there was no less discriminatory means for them to achieve a legitimate aim than the action they took. Mr Cairns argued that The Royal Mail Group could not prove a legitimate aim for their discriminatory treatment: there was a plan to create new indoor roles imminently and he could have been placed in one of those vacancies.
For anyone looking to understand the disability discrimination provisions of the Equality Act and how these fetter an employer’s ability to dismiss this is a neat case. There is no requirement for an employer to create a role for a disabled employee but if there is a vacancy an employer must place the person in the role. Even if this means needing to retrain, think Archibald v Fife, the seminal case on reasonable adjustments where the Supreme Court (the House of Lords as it was at the time) held that the duty is a very far ranging one indeed.
In my view this is a commonsense decision and a welcome one. It is a good reminder to employers about how far they need to go to avoid dismissing a disabled employee. The entire thrust of the disability provisions in the Equality Act is to avoid disabled employees having to go out into a job market that is unfortunately hostile to disabled applicants.
This blog was written by Karen Jackson, MD of didlaw and a recognised authority on disability discrimination law.
