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Making reasonable adjustments in the workplace- 12/07/2010
Swapping roles was a reasonable adjustment
In the recent case of Chief Constable of South Yorkshire Police v Jelic the Employment Appeal Tribunal has agreed with the decision of an employment tribunal finding that swapping the roles of a non-disabled police officer and a disabled police officer would have been a reasonable adjustment and that such an adjustment ought to have been made.
The EAT also said that the list of possible adjustments listed in the Disability Discrimination Act 1995 refers to transferring a disabled employee to fill an ‘existing vacancy’ but that the list is not exhaustive.
PC Jelic suffered with chronic anxiety syndrome and was eventually medically retired from the police force. Although PC Jelic coped with telephone contact without difficulty the occupational health advisor advised that he was unfit for front-line duties and that he would struggle if his role changed to involve direct contact with the public. On the facts of this case the employment tribunal found that it would not have been reasonable to keep PC Jelic in his current role which required increased public contact and that it would have been a reasonable adjustment to:
- Swap his role with a non-client facing role carried out by another PC; or
- Offer him medical retirement on his police pension and immediate new employment as a civilian on a staff pension.
The question for the tribunal was what steps it is reasonable for the employer to have to take in the circumstances.
The EAT referred to another case of Southampton City College v Randall [2006] which established that creating a new post in substitution for an existing post was not excluded from being a reasonable adjustment. In the Southampton case, the College had undergone a substantial reorganisation and restructuring process and it would have been possible to create a job which would both take account of the employee’s disability and harness the benefits of his successful career and experience. It was not being suggested that the employer should have created a post which was not otherwise necessary.
At first it appears that this case extends the duty on employers to make reasonable adjustments to include considering occupied posts as well as vacant posts. However, in this case the police force as an employer was a “disciplined service” and that even if the other police officer objected he could be ordered to swap roles under his duty to obey lawful orders. Other employers will not have the same powers as the police force, but employers should at least consider this option in appropriate circumstances and discuss it with employees where appropriate.
Best practice
What is a reasonable adjustment depends on the facts of each case. This case demonstrates that employers should consider all options when considering reasonable adjustments, underlining that the list of reasonable adjustments in the DDA 1995 is a non-exhaustive list.
The key point for employers to remember is that if they have employees who have disabilities they must make reasonable adjustments or risk a claim of disability