In the first semester of this academic year, I was speaking to a group of students about disability discrimination in terms of the Equality Act 2010. Disability is a protected characteristic (Sections 4 and 6 of the Act).
We were discussing, in particular, an employer’s duty to make reasonable adjustments to a post in order to assist a disabled person to continue carrying out their duties. The employer is under a duty in terms of Section 20 of the Act to make reasonable adjustments to a disabled person’s post. A failure to comply with this duty would breach Section 21 of the Act.
According to the Equality and Human Rights Commission’s Statutory Code of Practice on Employment, an example of a reasonable adjustment made by an employer to assist a disabled person could amount to the following:
An employer has a policy that designated car parking spaces are only offered to senior managers. A worker who is not a manager, but has a mobility impairment and needs to park very close to the office, is given a designated car parking space. This is likely to be a reasonable adjustment to the employer’s car parking policy.
What is reasonable when making adjustments?
This will be a key issue when determining whether to implement the requested adjustment. Each case will turn on its own facts and what is reasonable in one situation may be entirely unreasonable in different context. We can look at two contrasting cases to get a better understanding of this issue:
Cordell v Foreign & Commonwealth Office [2011] UKEAT 0016_11_0510 (5 October 2011) , the Employment Appeal Tribunal concluded that the adjustments requested by a senior diplomat were not reasonable in the sense that they would represent approximately five times the cost her annual salary.
Conversely, in Donnelly v Environment Agency [2013] UKEAT/0914/13 (18 October 2013), the Employment Appeal Tribunal stated that the refusal by the employer to consider providing the employee with a designated parking space was a failure to make reasonable adjustments.
Sharpshooting
So, returning to the discussion with my students, I related a story to them that had stuck in my memory about a disability claim. The story was reported in the UK national media in 2015 and concerned a Police marksman or sniper who had served in an armed response team with the Sussex and Surrey Force.
Please see the link to the story on website of the Mail Online:
The Police officer in question, Bruce Shields, had a developed a problem with his hearing. This was an issue which rightly concerned his superior officers. There were legitimate questions about his ability to carry out his job – especially so given the potentially serious situations which he often found himself in when carrying out his duties. Hearing loss is, of course, a disability in terms of the Equality Act 2010.
PC Shields took his employer to an Employment Tribunal alleging disability discrimination under the Equality Act 2010. He won his case, which may seem surprising given that you would have thought that his employer had strong grounds for removing him from these types of duties on health and safety grounds. This could be potentially an objective justification for his removal from firearms duties.
That said, however, the Tribunal decided in favour of PC Shields because his employer failed to send him for the appropriate medical test which would have established his suitability for these types of duties. No pun intended, but perhaps the employer “jumped the gun” by acting too hastily before an objective medical assessment was carried out.
Conclusion
The experience of Bruce Shields shows the importance of the employer carrying out independent medical tests before removing a disabled person from a post. Perhaps, if the employer had acted differently and followed procedures, there may have been a different outcome i.e. a more favourable one for the employer.
Copyright Seán J Crossan, February 2019
Seán Crossan's Scots Law 