The House of Lords has, this morning, handed down its opinion in the important case of Archibald v Fife Council.
Mrs Fife was a road sweeper. She became unable to walk after a rare complication of surgery, and could not fulfil her job. It was common ground she was disabled within the meaning of the Disability Discrimination Act 1995. Her employer, Fife Council, interviewed her for a sedentary post but chose to appoint a more qualified individual. It therefore dismissed her.
The House of Lords held:
- there is a positive duty to make reasonable adjustments - unlike sex and race discrimination, an employer is obliged to positively discriminate in favour of disabled people;
- contrary to the EAT and Court of Appeal's view, there was an 'arrangement' which placed Mrs Archibald at a substantial disadvantage; namely, an 'arrangement' that if she was physically unable to work as a road sweeper, she was liable to be dismissed;
- the positive obligation to make reasonable adjustments potentially includes allowing disabled persons to 'trump' applicants for other jobs, even if the disabled employee is not the best candidate, if the disabled employee is suitable to do that work.
Thus the House of Lords remitted the case to the tribunal to decide whether Fife Council failed to make reasonable adjustments and/or treated Mrs Archibald less favourably by requiring her to undergo an interview for the sedentary job rather than offering it to her as of right.
If anyone wants to read the judgment, the most thorough opinion (and easiest to read!) is Baroness Hale's, starting at para. 46.