In the recent case of Chief Constable of South Yorkshire Police v Jelic, the EAT held that a reasonable adjustment for the purposes of the Disability Discrimination Act can include swapping the job of a disabled employee with that of another employee.
PC Jelic was diagnosed with chronic anxiety syndrome and was moved to a non-confrontational role, which did not involve any face-to-face contact with members of the public (something which was said to have exacerbated his condition). This role later evolved to require contact with the public, and he was no longer considered suitable for it. Without warning, he was asked to attend a meeting to discuss his "medical retirement" which subsequently led to the decision by the Chief Constable to retire PC Jelic with an ill health pension.
PC Jelic raised claims for disability related discrimination and discrimination by reason of a failure to make reasonable adjustments. The EAT held that in the particular circumstances a reasonable adjustment would have been to "swap" PC Jelic's role with that of another employee engaged in a non-public facing role.
Impact on employers
- Previous case law has shown that the creation of a new post or the promotion without interview of a disabled employee may be a reasonable adjustment. However, this decision on its face appears to extend the obligation on an employer even further than this, to include consideration of occupied posts as well as vacant posts within the same organisation.
- However the EAT did make it clear that whether an employer would be required to consider swapping jobs with another employee will depend upon the individual circumstances and that, in some cases, it may be a step too far. For example, it may well not be a reasonable adjustment to require a woman working flexible hours due to childcare responsibilities to swap her job with that of a disabled person working longer hours. Equally, it may not be reasonable to force someone out of a job for which they are well suited and in to one that they are not, in order to accommodate a disabled employee.
- In each case, the benefits to the disabled employee will have to be weighted against the disadvantage to another. As outlined in the Disability Rights Commission's Code of Practice, the effect on other employees is a relevant consideration in determining whether any adjustment is reasonable in the circumstances.
- The EAT, in reaching its decision, placed a great deal of weight on the type of organisation involved. Given the special, disciplined nature of the police service, the PC being "'bumped" from his role would have been obliged to simply accept this as police officers are under a general duty to "obey lawful orders".
- The EAT criticised the employer's total failure to consult with PC Jelic over adjustments that might be made and employers are reminded that, whilst there is no express legal obligation to consult over reasonable adjustments, a failure to do so may jeopardise their legal position. It will not be possible to defend a claim on the basis of a lack of knowledge about a potential adjustment which would have become apparent had consultation taken place.