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LTL 16/4/2008 , Employment Appeal Tribunal - Louise Chudleigh
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The fact that an employer had deliberately adopted a policy that operated to the disadvantage of disabled people could not be a relevant consideration when weighing up whether an adjustment was reasonable.
The appellant chief constable appealed against an employment tribunal's decision that it had subjected the respondent police officer (W) to disability discrimination. W had been moved to restricted duties after developing a motor and sensory disease, and had then obtained a post in the police authority's central ticket office, dealing with road safety offences. When W reached 30 years' service he indicated that he intended to retire and applied for admission into the "Thirty Plus Retention Scheme". The aim of the scheme was to retain the skills of officers who would otherwise have retired on a full pension after 30 years' service. Under the scheme retiring officers could be immediately re-employed but still receive their full pension. The force initially accepted his application but later told him that it could no longer support his application since his post was one which could be done by those on restricted duties, and the force needed to retain it because it did not have enough suitable posts available for those on restricted duties. W remained in his post under his normal terms and conditions, and brought a claim for disability discrimination. The tribunal found that the force had adopted a policy of refusing access to the scheme to those in posts suitable for officers on restricted duties. It concluded that the force had failed to make reasonable adjustments by not admitting W into the scheme. The force submitted that (1) the tribunal had failed to have regard to the operational considerations supporting the force's decision; (2) the tribunal was wrong to have taken into account the policy not to admit to the scheme those in posts suitable for restricted duties because the policy was irrelevant when considering the question of reasonableness; (3) the tribunal had failed to have regard to the purpose of the Disability Discrimination Act 1995, which was to ensure that W would be better able to remain in employment.
HELD: (1) The obligation to have regard to all the circumstances, including the benefits to the force and the consequences for other officers was self-evident, O'Hanlon v Revenue and Customs Commissioners (2007) EWCA Civ 283, (2007) ICR 1359 considered. The tribunal had assessed the reasonableness of allowing W into the scheme merely by focusing on W's position. It was obliged to engage with the force's wider operational objectives, and in particular the desire to liberate posts for restricted officers. If W were to retire, that would liberate a further post for those in the force who were on restricted duties and would in turn enable a non-disabled officer to be recruited. A significant part of the tribunal's reasoning appeared to have been based on the premise that W would have remained in his post any way. That was an unjustified premise. At the time W applied to go into the scheme, he had indicated an intention to retire. In addition, if the scheme was properly applied, and not merely operated to give a benefit to an officer with 30 years' experience, there could be no justification for invoking it if W was going to remain in his post in any event. It was then not necessary to put him into the scheme to retain his skills. (2) The fact that the force had deliberately adopted a policy which operated to the disadvantage of disabled people could not be a relevant consideration in terms of reasonable adjustments. In every case there would be a provision, criterion or practice adopted by the employer which created a substantial disadvantage. That was not a factor which could properly weigh with the tribunal in considering whether a reasonable adjustment could be made. That error on its own would have been sufficient to invalidate the tribunal's decision. (3) It could not be the case that only adjustments which brought about integration into employment were required. The issue was whether an adjustment would mitigate or eliminate the substantial disadvantage and was reasonable. If the disadvantage related to the terms of employment, for example, then the question was whether a reasonable adjustment could be made to counter it, even if it did not affect the job or the way that it was carried out, Secretary of State for Work and Pensions v Macklin Unreported November 30, 2007 EAT, Chacon Navas v Eurest Colectividades SA (C13/05) (2007) All ER (EC) 59 ECJ and O'Hanlon considered. (4) The case was remitted to a fresh tribunal to consider the question of reasonable adjustments.