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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.
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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.
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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
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Over the next few months, 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
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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.
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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
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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.
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