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Disability discrimination: caution for SMEs

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According to employment law specialists a recently passed ruling regarding discrimination against disibility could lead the way for a potential torrent of unfair dissmissal claims.

The ruling was passed in favour of a Scottish road sweeper who was dismissed due to a physical disability.

In light of the fact that the Disability Discrimination Act 1995 (DDA 1995) will shortly apply to all employers, this ruling has come as a wake up call to all companies, especially SMEs, of the risks involved in ending workers’ contracts due to disability.

Recent case
In the case of Mrs Archibald v Fife Council, Mrs Archibald became unable to walk and therefore unable to sweep roads. Fife Council decided her disability was such that they could not make any ‘reasonable adjustments’ to help her with her road sweeping duties, and so interviewed her for a more sedentary post. She was not successful; the Council appointed a more ‘qualified’ individual and subsequently dismissed Mrs Archibald.

Appealing on the grounds of being ‘disabled’ within the meaning of the DDA 1995, Mrs Archibald argued that her employer, Fife Council, had not made ‘reasonable adjustments’ to prevent her from being ‘disadvantaged in comparison with persons who were not disabled’. In this landmark case, the House of Lords found in favour of the employee.

Will Clayton, Partner of dent, raven + marsdens, explains: “The implications of this decision are potentially very far reaching. Employers seeking to terminate the employment of any member of staff who becomes disabled and consequently unable to perform their duties will need to act extremely carefully, especially if there are other roles vacant within the organisation that the employee might be able to fill. Otherwise they will face claims of discrimination and unfair dismissal before Employment Tribunals where the potential damages available to successful applicants will be unlimited.”

How will your company avoid being caught out by the Disability Discrimination Act? HR Zone would like to hear your views on this ruling.

One Response

  1. SME’s
    This case in some ways would be easier for SME’s where control is very much at the centre. I would not seek to diminsih the importance of this case which was very recently used against a colleague’s clients and produced an even more perverse decision. The case was lost in my opinion because the House of Lords believed that the council should have directed a department (she applied for lots of jobs/departments) to take her unless she was obviously unsuited rather than rely on a policy of open competition and departmental autonomy to chooose the best person for the job. In my experience of SME’s it is much easier for the boss to say that “We will redeploy X into that job and the manager will work hard to integrate her with my guidance” This policy may well be unfair to other people’s career aspirations and does conjure up images of obviously unsuited people sticking out like sore thumbs because they have been forced like square pegs into round holes. It is very bureaucratic and starts from an employee or socital perspective rather than a balanced employer/employee contract.

    Peter Stanway

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