Archibald v. Fife Council

Factual and Procedural Background

The Appellant was employed by the Respondent local authority as a road-sweeper (Manual Worker Grade 1). Following complications during minor surgery, the Appellant became unable to walk and therefore incapable of carrying out the essential functions of the job. The Respondent funded retraining, and the Appellant applied unsuccessfully for more than 100 sedentary posts within the organisation. Under the Respondent’s redeployment policy, vacancies at a higher grade required competitive interviews. After two years without successful redeployment, the Respondent dismissed the Appellant for incapacity on 12 March 2001.

The Appellant brought claims before an Employment Tribunal alleging unfair dismissal and disability discrimination under the Disability Discrimination Act 1995 (“the 1995 Act”). The Tribunal dismissed both claims. Appeals to the Employment Appeal Tribunal and to the Court of Session were also dismissed. The present appeal to the House of Lords concerns only the disability discrimination issue.

Legal Issues Presented

1. Whether an employer’s duty to make reasonable adjustments under section 6 of the 1995 Act is triggered when an existing employee becomes totally incapable of performing her original job but is capable of performing another job within the same organisation.
2. Whether, in the circumstances, the Respondent’s requirement that the Appellant undergo competitive interviews and its failure simply to transfer her to a suitable sedentary vacancy amounted to a breach of the section 6 duty, thereby constituting discrimination under section 5(2) and unlawful dismissal under section 4(2)(d).
3. Whether the Respondent could rely on the justification defences in sections 5(3)–(5) and 6(7) of the 1995 Act or on section 7 of the Local Government and Housing Act 1989.

Arguments of the Parties

Appellant's Arguments

• The duty to make reasonable adjustments arises once an employee is placed at a substantial disadvantage, even if she can no longer perform the original job.
• Section 6(3)(c) expressly contemplates “transferring the disabled person to fill an existing vacancy”, which includes vacancies at a higher grade.
• Section 6(7) is expressly made “subject to” section 6; hence, employers may be required to treat disabled employees more favourably than others.
• The Respondent’s insistence on competitive interviews and its failure to transfer the Appellant to a sedentary post breached the section 6 duty and could not be justified.

Respondent's Arguments

• The purpose of the section 6 duty is to remove obstacles that prevent a disabled employee doing her current job; it is not triggered where the employee is totally incapable of that job.
• Requiring competitive interviews applied equally to all candidates and therefore did not place the Appellant at a “substantial disadvantage”.
• Section 6(7) and section 7 of the Local Government and Housing Act 1989 prevent any obligation to prefer the Appellant over other candidates.
• Dismissing the Appellant after exhaustive redeployment efforts was within the range of responses open to a reasonable employer.

Table of Precedents Cited

Court's Reasoning and Analysis

All members of the appellate panel (Judge Hope, Judge Rodger, Judge Hale, and Judge Brown) agreed that the lower tribunals misconstrued the statutory scheme.

• Starting point – unlawfulness under section 4: Dismissal is unlawful only if it constitutes discrimination as defined in section 5 (Judge Hope).
• Relationship between sections 5 and 6: The duty to make reasonable adjustments (section 6) informs both the existence of discrimination under section 5(2) and the availability of justification under section 5(1) (Judge Rodger).
• Trigger for the duty: “Arrangements” in section 6(1) include contractual terms that expose a disabled employee to dismissal when she can no longer perform essential functions. Such arrangements place her at a substantial disadvantage compared with non-disabled employees not facing dismissal on that ground.
• Scope of adjustments: Section 6(3)(c) expressly includes transferring a disabled employee to fill another vacancy. Nothing limits that vacancy to the same grade; the example is illustrative, not exhaustive (Judge Hope and Judge Hale).
• Positive discrimination permissible: Section 6(7) is subordinate to section 6(1); therefore, employers may be required to treat a disabled person more favourably if necessary to remove the disadvantage.
• Interaction with local-government “merit” requirement: Section 7 of the 1989 Act is itself subject to the 1995 Act, allowing transfer without competitive interview when required by section 6 (Judge Hope).
• Error of the Employment Tribunal: By assuming that competitive interviews could never be waived and that section 6(7) prohibited preferential treatment, the Tribunal failed to address whether dispensing with interviews or directly transferring the Appellant was a reasonable adjustment.

Holding and Implications

HOLDING: Appeal ALLOWED; the decision of the Employment Tribunal is set aside and the case is REMITTED to the Employment Tribunal for reconsideration in accordance with the House’s guidance.

Implications: The judgment clarifies that an employer’s duty to make reasonable adjustments under the 1995 Act can require transferring a disabled employee to a suitable vacancy—even at a higher grade and without competitive interview—when that is a reasonable step to remove the disadvantage created by disability. Local-authority merit rules are subordinate to this statutory duty. The decision provides authoritative guidance on the breadth of the section 6 duty and affirms that positive measures may be mandatory to achieve substantive equality for disabled employees.