The cases had nothing to do with IT or the internet; but yesterday's decision by the Court of Appeal means that any employer refusing to make reasonable adjustments for disabled employees is risking thousands of claims for constructive dismissal. The other, unrelated case, decided by the House of Lords on 1st July, identified a duty on employers to make reasonable adjustments for disabled people if they become unable to carry out the job they are in due to their disability.
Gaynor Meikle's case
Gaynor Meikle, 57, a Nottingham teacher with over 30 years' experience, argued that her employer, Nottinghamshire County Council, discriminated against her at work because of sight loss. The Court of Appeal found that she was constructively dismissed and should have received full pay, not sick pay, when she suffered her sight loss.
Her case was supported by the Disability Rights Commission (DRC), an independent statutory body responsible for advising Government on the effectiveness of disability discrimination legislation. The ruling is the first time that the Court of Appeal has found on the points of constructive dismissal and sick pay in relation to disability discrimination.
The case sets the precedent that constructive dismissal is covered by the Disability Discrimination Act (DDA), the same legislation that places obligations on organisations to ensure that their web sites are accessible to the disabled. Constructive dismissal arises when the employer is directly responsible for behaving in a way that entitles an employee to resign as Mrs Meikle did.
The case also sets the precedent that payments of sick pay by employers are subject to the duty to make reasonable adjustments and are not covered in an exclusion of the Act that covers certain benefits payable to employees for accident, injury, sickness or invalidity.
So not only will employers have to make adjustments in future but they will have to pay sick pay under the DDA when they fail to do so, if the consequence is that the disabled person is unable to work because adjustments have not been made.
This ruling comes on the back of DRC figures last year showing workplace discrimination accounted for more than half of the cases supported by it since its inception in 2000. And employers' failure to make adjustments for disabled workers made up more than a third of those cases.
Bert Massie, Chairman of the DRC, said:
"This is a very important judgment and strengthens the rights of disabled people to stay in work. The biggest problem disabled people face both in getting in and moving on in work is the failure of employers to make crucial adjustments, a failure which has contributed to disabled people being twice as likely to be out of work than non-disabled people and a ballooning of incapacity benefits claims."
In future, when a disabled employee is on long-term sick leave or at risk of a cut in pay, the onus will be on employers to provide cogent justification for not maintaining full pay for the period of absence.
Regarding constructive dismissal, when employers fail to make reasonable adjustments, employees like Mrs Meikle will be entitled to resign and still be able to claim discrimination against their employer.
After 11 years at Gedling School in Nottingham, Mrs Meikle developed a disability when her sight degenerated in 1993. She explained:
"When my sight started to get worse in 1993 I asked my employers to make improvements for me at work. These involved enlarging written materials and letting me take on extra non-teaching hours for marking and class preparation."
These improvements were not made and Mrs Meikle went on sick leave before being suspended and was then forced to resign in May 2000. The Court found that the school's failure to make improvements to assist with her sight loss were a failure to make reasonable adjustments as outlined in the DDA. As a result Mrs Meikle was discriminated against because of her disability.
The case will now return to the Employment Tribunal where a settlement will be decided.
Susan Archibald's case
The DRC also supported Susan Archibald, who won her case last week in the House of Lords. The ruling means that there is now a duty on employers to make reasonable adjustments for disabled people if they become unable to carry out the job they are in due to their disability. This duty includes considering whether it is reasonable to transfer the disabled person to another vacant post, even if that post is at a higher grade.
Mrs Archibald, 38, worked as a road sweeper with Fife Council from May 1997 until March 2001. In April 1999 complications following surgery caused severe pain in her heels, leaving her unable to walk. She initially used a wheelchair and later was able to walk only with sticks.
She had previously worked as an administration assistant and went for retraining to update her skills. She had to undertake competitive interviews in accordance with the council's redeployment policy and applied unsuccessfully for over 100 posts within various departments. In March 2001, the council dismissed her on the grounds of capability.
Mrs Archibald later successfully applied to Fife Council to become supervisor of a local community centre. Lynn Welsh, the DRC's Head of Scottish Legal Affairs, said: "This appointment acknowledges that Mrs Archibald was capable of this level of job. Had the council transferred her to a similar post at the time, she would not have lost a substantial amount of earnings over a considerable period of time."
Mrs Archibald complained she had been discriminated against on grounds of disability. She argued she should not have had to compete for alternative employment if she could show she could perform the duties and responsibilities of the post and that her employers had failed to comply with a duty to make a reasonable adjustment under the Disability Discrimination Act.
However, an employment tribunal dismissed her complaint, saying that Fife Council had not failed to comply with any duty of reasonable adjustment. The Employment Appeal Tribunal (EAT) dismissed an appeal, ruling that there was, in fact, no duty of reasonable adjustment on the employers at all.
The DRC appealed to the Court of Session which ruled that an adjustment duty was not triggered by becoming physically incapable of carrying out the job and that transfer to a different job was not a reasonable adjustment. The DRC then appealed to the House of Lords, which has ruled that the EAT and Court of Session were wrong, and that the case should be referred back to the employment tribunal.
Lynn Welsh said:
"It was always clear to us that there was a duty on Fife Council to consider transferring Mrs Archibald into one of the 100 jobs she applied for, and that the Employment Tribunal were wrong to say this would have been more favourable treatment. At last we can get a Tribunal to look at the case properly."