This case clarified the extent of the duty to make reasonable adjustments and provided guidance on what constitutes "arrangements" for the purpose of section 6 of the Disability Discrimination Act 1995.
The Applicant was employed by the Council as a road sweeper. In 1999 she became unable to walk due to complications during minor surgery and was no longer able to do her job. The council provided her with the necessary training for office work and concluded that she was capable of working in an office environment. However, because these jobs were on a slightly higher grade and pay scale than her original job the Applicant would have to go through competitive interviews. The Applicant applied for over 100 posts within the council but without success and by 2001was dismissed on grounds of incapacity due to her inability to carry out her employment as a road sweeper.
The Applicant's argument was that she had been discriminated against on grounds of her disability being required to go through the competitive interviews. She believed she should have simply been transferred to the job as she was qualified and suitable for the job in question.
Duty to make reasonable adjustments
In paragraph 32 of the Judgment Lord Roger commented that "before the tribunal can decide whether the council's less favourable treatment of Mrs Archibald was 'justified' in terms of section 5(1) and (3), they must first determine whether the council owed her a duty to make adjustments, what the content of any such duty was in the circumstances and what the position would have been if the council had fulfilled any such duty that was incumbent on them."
The employment tribunal had concluded that if the council had agreed to transfer the Applicant to a post that she was qualified and suitable for this would have amounted to 'more favourable treatment' which is expressly excluded by section 6(7) of the Act. The House of Lords concluded however that this provision is subject to the provisions of section 6 itself. In other words section 6(7) is subject to the duty to make adjustments in relation to people who are at a substantial disadvantage because they are disabled in comparison with persons who are not disabled: section 6(1).
The employment tribunal had wrongly decided that less favourable treatment had occurred under section 5(1) without first considering any issue regarding a duty under section 6. The House of Lords concluded that the case would be remitted to the tribunal to consider whether the council had fulfilled its section 6(1) duty, by determining whether it would have been reasonable for the council simply to have transferred Mrs Archibald to a sedentary job for which she was suitable or whether the council's policy requirement for a competitive interview should have been dispensed with in her case. Depending on the circumstances of the case, the employer may be obliged to put the disabled employee in the new post, not merely to give her the opportunity to apply for it. Baroness Hale remarked at paragraph 66 that in some cases the duty may require the employer to move her to a post at a slightly higher grade: "a transfer can be upwards as well as sideways or downwards". Theses are matters of fact for the tribunal and will depend on the circumstances of the case.
"Arrangements" under section 6 (1)"
The House of Lords also provided guidance in relation to what 'arrangements' can be the subject of adjustments.
Section 6(1)(a) states that where any "arrangements" made by an employer place a disabled person at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as is reasonable in all the circumstances to prevent the arrangements having that effect. Under section 6(3)(c) transferring an employee to an existing vacancy is considered to be a step in which an employer may have to take.
They confirmed that "arrangements" included the liability of anyone who became incapable of fulfilling their job description to be dismissed. Lord Hamilton remarked in the Court of Session at paragraph 23
"Although under the subsection it is the arrangements (or some physical feature of the premises) which 'place' the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, I accept that there is no particular chronological sequence involved in such placement. A person already disabled may come to pre-existing arrangements; new arrangements may come to an already disabled person; existing arrangements may affect a person who has become disabled. It is the conjunction of the arrangements and of the substantial disadvantage to the disabled person concerned which is material."
The issue therefore is whether, after she became disabled, "any arrangements made" by the council placed Mrs Archibald at a substantial disadvantage in comparison with persons who were not disabled.