Disability and reasonable adjustment

A clause in the new Equality Bill is intended to overturn the House of Lords court case (Malcolm) which stated that the correct comparator for a disabled person was someone who was in the same position or had performed the same act but was not disabled.

However, the Employment Appeal Tribunal has shown that even without new legislation it is possible to side-step the judgement by using the 'reasonable adjustments' provision. In this case (Fareham College Corporation v Walters 2009) a college dismissed a lecturer who had a long-term illness which it was agreed amounted to a disability.

The college failed to consider sufficiently a phased return to work: indeed, the suggestion was that it had barely considered it at all. The college argued that it would be difficult to appoint temporary staff, it would have a negative effect upon learners, other lecturers would be forced to take on an uneven share of evening work and the management of multiple timetable fractions would be difficult. The college argued that it dismissed other staff with a bad attendance record and therefore there was no discrimination.

The employment tribunal, however, took the view that the issues of discrimination and reasonable adjustment were so intermingled that they could not be distinguished. The appeal tribunal followed this line of argument, despite the House of Lords ruling in Malcolm. The college, in its view, had not made reasonable adjustments.

Though the comparator argument might be correct in terms of Malcolm, the failure to make reasonable adjustments put the college in the wrong.

This has significant implications, not only for employment cases but also for school exclusions. The argument that making reasonable adjustments is inextricably linked will clearly be used to prevent children with ADHD, for example, from being excluded.

Schools and colleges will have to ensure that if dismissal is being considered they have made reasonable proposals of alternative modes or areas of work and have secured a clear statement from the employee that s/he will not consider them.

Tribunals clearly believe that as long as there is a lecturer in front of students at all times, which lecturer is unimportant. If a college or school wishes to prove otherwise, it will have to produce evidence.

Similarly, if an exclusion is being considered, it will be essential to demonstrate that no reasonable adjustment can be made that satisfies the school's duty of care to other staff and students.

In the abstract, this is nothing new. However, it assumes a new importance in the interim between Malcolm and the passing into law of the new Equality Bill.