Fife roadsweeper re-writes disability law

by Peter Hunter Legal Officer

A landmark ruling by the House of Lords in the case of UNISON member Susan Archibald has greatly strengthened the employment rights of disabled people.

The law lords said employers must consider positive steps such as redeployment to a higher grade if that is the reasonable step required to prevent discrimination.

Susan's case was initially taken by UNISON officer Jim McNeill but the union then agreed to financially support the Disability Rights Commission (DRC) to pursue the case because of its wider implications.

Susan, of Kelty, Fife, said: "I am very happy that the Lords supported us and the law is now hopefully much clearer. I did not go through all this for financial gain but to ensure that no-one would have to go through what I went through.

"Now disabled people in a similar position will have the opportunity to challenge any employer they feel is discriminating against them."

The 38-year-old mother-of-four worked as a road sweeper with Fife Council from May 1997 until March 2001. In April 1999 complications following surgery caused severe pain in her heels, leaving her unable to walk. She initially used a wheelchair and later was able to walk only with sticks.

She had previously worked as an administration assistant and went for retraining to update her skills. She had to undertake competitive interviews in accordance with the council's redeployment policy and applied unsuccessfully for over 100 posts within various departments.

In March 2001, the council dismissed her on the grounds of capability. Susan later successfully applied to Fife Council to become supervisor of a local community centre.

Lynn Welsh, the DRC's Head of Scottish Legal Affairs, said: "This appointment acknowledges that Mrs Archibald was capable of this level of job.

"Had the council transferred her to a similar post at the time, she would not have lost a substantial amount of earnings over a considerable period of time."

Susan complained she had been discriminated against on grounds of disability. She argued she should not have had to compete for alternative employment if she could show she could perform the duties and responsibilities of the post and that her employers had failed to comply with a duty to make a reasonable adjustment under Section 6 of the Disability Discrimination Act.

However an employment tribunal dismissed her complaint, stating Fife Council had not failed to comply with any duty of reasonable adjustment. The Employment Appeal Tribunal dismissed an appeal, holding there was, in fact, no duty of reasonable adjustment on the employers at all.

The DRC appealed to the Court of Session who ruled that an adjustment duty was not triggered by becoming physically incapable of carrying out the job and that transfer to a different job was not a reasonable adjustment. The DRC then appealed to the House of Lords, who have ruled that the EAT and Court of Session were wrong, and that the case should be referred back to the employment tribunal.

headlines . top