Archibald v Fife Council

Last updated

Archibald v Fife Council
CourtHouse of Lords
Decided1 July 2004
Citation(s)[2004] 4 All ER 303, [2004] IRLR 651, [2004] ICR 954
Transcript(s) Full text on Bailii
Court membership
Judge(s) sittingLord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood

Archibald v Fife Council [2004] UKHL 32 is a UK labour law case, concerning the Disability Discrimination Act 1995.

Contents

Facts

Mrs Archibald was employed as a road sweeper for Fife Council. She had surgery in 1999, but there were complications. She lost the ability to walk and could no longer work. The council kept her as an office worker. She was placed on the shortlist for all upcoming vacancies. As Baroness Hale said in her statement of the facts,

Over the next few months, [Mrs Archibald] applied for over 100 posts within the council. These were all on the APT&C scale rather than on the Manual Worker Grade 1 scale. The basic wage was very slightly higher than for the manual grade. According to the council's redeployment policy, people seeking redeployment at a higher grade had to undertake competitive interviews. Mrs Archibald failed to obtain any of these posts. She told the Employment Tribunal that she did not think that this was anything to do with her disability but rather that 'they' did not look past the fact that she was a road sweeper - someone coming from an industrial background having to compete with others from a staff background. Eventually, as she was still unable to return to work as a road sweeper and the redeployment procedure had been exhausted, she was dismissed on grounds of incapacity from 12 March 2001.

Mrs Archibald argued at the employment tribunal that her dismissal was unlawful under s 4(2) DDA 1995 for discrimination in failing in their duty to make reasonable adjustments (s 6) and causing her substantial disadvantage, particularly the requirement for competitive interviews.

The employment tribunal held that the council's treatment was justified under s 5(1)(b) DDA 1995. The request that competitive interviews be removed would have been too favourable, contrary to s 6(7). Both the Employment Appeal Tribunal and the Inner House of the Court of Session dismissed her appeals.

Judgment

The House of Lords allowed Mrs Archibald's appeal. It held that under s 5 DDA 1995, no finding may be made that less favourable treatment is justified unless the duty to make reasonable adjustments is taken into account. The employer must have made reasonable adjustments, and only then can it be asked whether less favourable treatment (in this case, not hiring Mrs Archibald in the office) is justified. Accordingly, under s 6(3)(c), the duty to make reasonable adjustments included transferring an employee to "fill an existing vacancy" and this can include the possibility that a disabled person be placed at the same or higher grade without any competitive interview if that is reasonable under the circumstances. Such favourable treatment was not at all precluded by s 6(7), which should be read subject to the previous provisions of the section. Furthermore, the duty under the DDA 1995 to make reasonable adjustments overrode the Local Government and Housing Act 1989 s 7 requiring that staff be appointed by merit.

In conclusion, the tribunal had never considered whether the council had fulfilled its s 6 duty, and that the case should be remitted to determine that question.

See also

Notes

    Related Research Articles

    <span class="mw-page-title-main">Disability Discrimination Act 1995</span> United Kingdom legislation

    The Disability Discrimination Act 1995 is an Act of the Parliament of the United Kingdom which has now been repealed and replaced by the Equality Act 2010, except in Northern Ireland where the Act still applies. Formerly, it made it unlawful to discriminate against people in respect of their disabilities in relation to employment, the provision of goods and services, education and transport.

    <span class="mw-page-title-main">United Kingdom labour law</span> Rights of workers, unions, and duties of employers in the UK

    United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK have a minimum set of employment rights, from Acts of Parliament, Regulations, common law and equity. This includes the right to a minimum wage of £10.42 for over-23-year-olds from April 2023 under the National Minimum Wage Act 1998. The Working Time Regulations 1998 give the right to 28 days paid holidays, breaks from work, and attempt to limit long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act 1995. Workers must be able to vote for trustees of their occupational pensions under the Pensions Act 2004. In some enterprises, such as universities or NHS foundation trusts, staff can vote for the directors of the organisation. In enterprises with over 50 staff, workers must be negotiated with, with a view to agreement on any contract or workplace organisation changes, major economic developments or difficulties. The UK Corporate Governance Code recommends worker involvement in voting for a listed company's board of directors but does not yet follow international standards in protecting the right to vote in law. Collective bargaining, between democratically organised trade unions and the enterprise's management, has been seen as a "single channel" for individual workers to counteract the employer's abuse of power when it dismisses staff or fix the terms of work. Collective agreements are ultimately backed up by a trade union's right to strike: a fundamental requirement of democratic society in international law. Under the Trade Union and Labour Relations (Consolidation) Act 1992 strike action is protected when it is "in contemplation or furtherance of a trade dispute".

    <span class="mw-page-title-main">Employment tribunal</span> Tribunal public bodies in England and Wales and Scotland

    Employment tribunals are tribunal public bodies in both England and Wales and Scotland that have statutory jurisdiction to hear disputes between employers and employees.

    United Kingdom employment equality law is a body of law which legislates against prejudice-based actions in the workplace. As an integral part of UK labour law it is unlawful to discriminate against a person because they have one of the "protected characteristics", which are, age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, pregnancy and maternity, and sexual orientation. The primary legislation is the Equality Act 2010, which outlaws discrimination in access to education, public services, private goods and services, transport or premises in addition to employment. This follows three major European Union Directives, and is supplement by other Acts like the Protection from Harassment Act 1997. Furthermore, discrimination on the grounds of work status, as a part-time worker, fixed term employee, agency worker or union membership is banned as a result of a combination of statutory instruments and the Trade Union and Labour Relations (Consolidation) Act 1992, again following European law. Disputes are typically resolved in the workplace in consultation with an employer or trade union, or with advice from a solicitor, ACAS or the Citizens Advice Bureau a claim may be brought in an employment tribunal. The Equality Act 2006 established the Equality and Human Rights Commission, a body designed to strengthen enforcement of equality laws.

    United Kingdom agency worker law refers to the law which regulates people's work through employment agencies in the United Kingdom. Though statistics are disputed, there are currently between half a million and one and a half million agency workers in the UK, and probably over 17,000 agencies. As a result of judge made law and absence of statutory protection, agency workers have more flexible pay and working conditions than permanent staff covered under the Employment Rights Act 1996.

    Coleman v Attridge Law (2008) C-303/06 is an employment law case heard by the European Court of Justice. The question is whether the European Union's discrimination policy covers not just people who are disabled but people who suffer discrimination because they are related or connected to disabled people. At the beginning of 2008, Advocate General Maduro delivered his opinion, supporting an inclusive approach. He said discrimination law is there to combat all forms of discrimination, including those connected to protected groups of people.

    Paul v National Probation Service [2004] IRLR 190, [2003] UKEAT 0290_03_1311 is a UK labour law case, concerning the duty of an employer to make reasonable adjustments to accommodate employees with disabilities.

    <i>Pearce v Mayfield Secondary School Governing Body</i>

    Pearce v Mayfield Secondary School Governing Body and Advocate General for Scotland v MacDonald [2003] UKHL 34; [2003] IRLR 512 is a UK labour law case concerning sexuality and sex discrimination. It was decided before the new Employment Equality Regulations 2003.

    O'Hanlon v Revenue and Customs Commissioners [2007] EWCA Civ 283 is a UK labour law case concerning disability discrimination.

    <i>Luke v Stoke-on-Trent City Council</i>

    Luke v Stoke-on-Trent City Council [2007] EWCA Civ 761 is a UK labour law case, concerning the test for an implied term.

    Lewisham LBC v Malcolm[2008] UKHL 43 was a case concerning disability discrimination and the application of equality legislation in the United Kingdom, relevant for UK labour law. It replaced the head of disability-related discrimination from the DDA 1995 with the Equality Act 2010 section 15 on discrimination arising from disability.

    Eagle Place Services Ltd v Rudd [2010] IRLR 486 is a UK labour law case, concerning disability discrimination.

    Azmi v Kirklees Metropolitan Borough Council [2007] IRLR 434 is a UK labour law case, concerning indirect discrimination on grounds of religion. The United Kingdom Employment Appeals Tribunal in London (EAT) dismissed the appeal in respect of discrimination and/or harassment, but awarded £1,100 to the plaintiff for victimisation, uprated by 10% as a result of the LEA's having failed to follow the statutory grievance protocol.

    <i>Shamoon v Chief Constable of the Royal Ulster Constabulary</i>

    Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 is a UK labour law case concerning the appropriate test for determining who is a comparator.

    Jones v University of Manchester [1993] ICR 474 is a leading discrimination case relevant for UK labour law, concerning the test for justification of indirect discrimination.

    Disability in the United Kingdom covers a wide range of conditions and experiences, deeply impacting the lives of millions of people. Defined by the Equality Act 2010 as a physical or mental impairment with a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, it encompasses various aspects of life, including demographics, legislation, healthcare, employment, and culture. Despite numerous advancements in policy and social attitudes, individuals with disabilities often encounter unique challenges and disparities.

    P v S and Cornwall County Council was a landmark case of the European Court of Justice (ECJ) which extended the scope of sex equality to discrimination against transsexuals.

    Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15 is a UK labour law case, concerning discrimination under what is now the Equality Act 2010.

    Seldon v Clarkson, Wright and Jakes [2012] UKSC 16 is a UK labour law case, concerning the discrimination under what is now the Equality Act 2010.

    Royal Mail Group Ltd v Efobi [2021] UKSC 33 is a UK labour law case, concerning race discrimination and the burden of proof.