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Offers of alternative employment and disabled employees
There are a number of cases illustrating how the duty to make reasonable adjustments can strengthen the position of a disabled employee whose role is eliminated through redundancy, for example:
Kent County Council had a collectively agreed redeployment policy prioritising council staff at risk of redundancy for redeployment over other staff, including employees who needed to be redeployed because of disability. Mr Mingo, a disabled employee, was repeatedly turned down for internal jobs in favour of staff at risk of redundancy. The EAT held that the policy discriminated against the disabled, and that it would be a reasonable adjustment to consider him for redeployment ahead of non-disabled staff at risk of redundancy. The EAT found that the manager was more concerned with achieving “fairness” for everyone than with making adjustments for Mr Mingo.
The fact that others may be disadvantaged by an adjustment made for a disabled person is irrelevant to the question whether it is reasonable. This case also illustrates how individual statutory rights will “trump” collective agreements where the two clash.
Kent CC v Mingo [2000] IRLR 90
Mrs Archibald became unable to do her job as a road sweeper because of a disabling back injury. The House of Lords (now Supreme Court) decided that it would have been a reasonable adjustment for the Council to consider offering her another role she was capable of performing, without being required to go through a competitive interview process.
Archibald v Fife Council [2004] UKHL 32
There is no obligation to “red circle” (i.e. protect) a disabled employee’s terms and conditions. If the new job is on a lower rate of pay and the employee accepts it, the employer does not have to maintain the terms and conditions from the previous post (British Gas Services v McCaull [2001] IRLR 60). Nor is there a requirement on the employer to dismiss other employees to make way for a disabled employee whose job has been made redundant.
Where disability-related absence has led to de-skilling, the employer may be under an obligation to re-train the employee so that they are able to take up alternative employment (Travis v Electronic Data Systems Limited [2004] UKEAT 0476/03/0403).