The Disability Discrimination Act 1995 (DDA) imposes a duty on employers to make reasonable adjustments to working practices and premises in order to ensure that a disabled employee or job applicant is not disadvantaged.
A question which has sometimes arisen is whether or not a failure to consult a disabled employee regarding possible adjustments that could be made is in itself a failure to make a reasonable adjustment.
The Employment Appeal Tribunal (EAT) has confirmed (Scottish and Southern Energy PLC v Mackay) that the correct approach is that set out in the 2006 case, Tarbuck v Sainsbury’s Supermarkets Ltd, in which the EAT expressly held that whilst it is good practice to consult, the failure to do so does not itself involve an independent breach of any duty to make reasonable adjustments.
Mr Mackay had worked for Scottish and Southern Energy since joining the company as an apprentice electrician in 1980. By 2003, he was working on his own as an appliance repair engineer. He found that changes in working practices increased the work pressure on him and in May 2003 he was certified as unfit to work because of depression. Over the next two years and more, the company sought medical reports, which confirmed that there was little prospect of Mr Mackay returning to his job in the near or even medium future. At one stage he did work for a short time, shadowing other employees at a power station, in the hope that this would help him become fit for work, but the company advised that he could not continue to work in a supernumerary capacity, after which Mr Mackay again became unfit for work.
By May 2005, Scottish and Southern Energy was of the view that it was unreasonable to expect the company to accommodate Mr Mackay’s absence much longer. The company suggested there should be one more medical review and a further meeting at the beginning of August.
On 7 September 2005, Mr Mackay indicated that he would accept a vacancy as a craftsman in the Stornoway power station and would undertake the training required. The company had investigated the possibility of him being able to carry out the job at the power station. His doctor had indicated that this was unlikely unless Mr Mackay’s condition had changed but, if he believed himself capable of doing the work, the doctor thought he would be able to take up the duties some time in the future. However, the company had formed the opinion that he had neither commitment nor enthusiasm for the post and the decision to dismiss him was confirmed by letter on 30 September 2005. Mr Mackay appealed against the decision but the appeal was rejected.
Mr Mackay brought a claim for disability discrimination, on the ground that his employers had failed to make reasonable adjustments, in breach of section 3A(2) of the DDA, and for unfair dismissal.
The Employment Tribunal (ET) noted that in many respects Mr Mackay’s employers had carried out a meticulous and detailed investigation into his condition but found that they had discriminated against him, by reason of his disability, because they failed to consult him fully regarding the possibility of retraining. The ET also concluded that Mr Mackay’s dismissal was unfair. His employer had not specifically broached with him the question of retraining as a mechanical craftsman, when it was known that one of the existing workers was due to retire, specifically to gauge his reaction. In its view, no reasonable employer would have failed to do this.
Scottish and Southern Energy appealed. With regard to the finding of disability discrimination, the EAT found that the failure to consult identified in this case fell within the scope of the decision in Tarbuck v Sainsbury’s Supermarkets Ltd. and so the premise on which the finding had been made was false.
As regards the finding of unfair dismissal, even though there was evidence that the employers had in many respects been extremely solicitous for Mr Mackay’s welfare, the ET had taken the view that it was not possible to form a properly considered opinion on whether Mr Mackay had the commitment to do the craftsman job as the matter had not been raised with him directly. The EAT found that the ET was entitled to reach that conclusion.
