26 August 2010
A recent case examined the extent of an employer's obligation under the Disability Discrimination Act 1995 (DDA) to make reasonable adjustments to cater for the special needs of a disabled employee (Chief Constable of South Yorkshire Police v Jelic).
PC Jelic had been diagnosed as suffering from chronic anxiety syndrome. His condition became worse when he worked in a public-facing role. It was recognised that he had a disability for the purposes of the DDA. After time off work for stress-related illness, he joined the Safer Neighbourhood Unit (SNU) and, over time, carved out a niche for himself developing expertise on the National Crime Reporting Standard (NCRS) database and procedures. However, the duties of an SNU Constable changed and officers were required to have more direct dealings with the public. PC Jelic was only able to carry out some of the necessary duties, his role being more akin to that of a police staff operator than a police officer.
In 2007, the District Commander decided that PC Jelic should be retired early on medical grounds. At no stage was any search made for other suitable jobs and the decision took effect in May 2008.
PC Jelic brought a claim of disability discrimination. He contended that had reasonable adjustments been made, he could have carried on working. One specific claim was that his employer should have considered a job swap between him and another officer, PC Franklin, who worked on the NCRS database and was not on restricted duties. The Chief Constable contended that he was only obliged by law to consider a possible transfer to a vacant post, not a job swap.
The test of reasonableness in such cases is an objective one. What is reasonable will depend on the particular circumstances in an individual case.
The Employment Tribunal (ET) found in PC Jelic's favour on this point. A job swap is not outside the scope of reasonable steps that could be taken under the DDA. In this case, the Chief Constable should have noted the symmetry of the two jobs in question and, whilst taking account of the views of PC Franklin, should have been aware that he would not have had difficulty taking on a role which involved face-to-face contact with the public. In addition, the Police Force is a disciplined service and the Chief Constable could have ordered PC Franklin to move if necessary.
The Employment Appeal Tribunal upheld this decision. The list of examples contained in part two of Section 18B of the DDA (Reasonable adjustments: supplementary) is illustrative. It is not an exhaustive list of the steps that may need to be taken in relation to a disabled person in order to comply with the duty to make reasonable adjustments. The ET was entitled to find, on the facts before it, that there was no legal bar to finding that a job swap would have been a reasonable adjustment in this case. The appeal was therefore bound to fail because the Chief Constable had not given this possibility any consideration.
Contact partner and practice group leader, Jo Davis, for advice on any discrimination law matter on 01753 279029, complete the online enquiry form or email employmentlaw@bpcollins.co.uk.
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