Under the Disability Discrimination Act 1995, employers have a duty to make reasonable adjustments if the "provisions, criteria or practices" or the "physical features" of the workplace put a worker at a substantial disadvantage in comparison with a nondisabled person.
In Smith v Churchills Stairlift plc, the Court of Appeal has said that the test as to whether the adjustment was reasonable is an objective one for the tribunal to decide.
What were the basic facts?
Mr Smith applied for and was offered a job selling radiator cabinets. He had explained at his interview that he had difficulty walking and carrying heavy objects, but the company said it could supply an automatic car.
Although it was unsure at this stage what samples the sales staff would have to carry, the company offered him a place on a training course. It then decided that they would have to carry a full-sized cabinet (weighing 25 kilos), reasoning that if people could see them they would be more likely to buy them.
Working on the basis that Mr Smith would not be able to carry one, the company withdrew the offer of the training course. He suggested a trial period of selling without using the cabinet, but the company refused. Mr Smith made a claim of disability discrimination.
What did the tribunals decide?
The employment tribunal decided that Mr Smith was treated less favourably for a reason related to his disability when the company withdrew the place on the course. It said that carrying the cabinet was not an essential part of the job - it was simply an "arrangement" attached to the job.
It then decided, however, that he had not been placed at a substantial disadvantage by this requirement on the basis that, due to its weight and size, a majority of the population would have difficulty carrying the cabinet any distance and lifting it into a car.
Although the duty to make reasonable adjustments did not arise, the tribunal said that, if it had, the company would not have fulfilled the duty, because it had not offered a trial period of selling, using a different sales aid to the full-sized cabinet.
The company's withdrawal of the offer was justified, however, because Mr Smith was clearly unable to carry the cabinet and there were good commercial reasons for the sales staff to have them on show for potential customers.
The EAT, however, said the tribunal's decision was inconsistent and perverse. On the one hand, it had accepted the company's reasons for needing the cabinets in terms of the justification defence, but rejected it when considering the requirement to carry out reasonable adjustments.
What did the court of appeal decide?
Arrangements - Following the decision in Archibald v Fife Council (LELR 92), the tribunal was right to decide that the requirement to carry a full-sized radiator cabinet was a relevant "arrangement", but so was withdrawing the offer on the training course if Mr Smith could not carry a cabinet. The duty to make a reasonable adjustment would then have been triggered if either of these arrangements put him at a substantial disadvantage.
Trigger for duty to adjust - The Court of Appeal said that tribunals must look at the reason that triggers the duty to adjust. In this case, it said that the reason Mr Smith could not lift the cabinet was because of his back, so the comparison was not with the rest of the population but the other candidates who had successfully made it onto the training course.
Test for reasonableness and justification - The test as to whether the adjustment was reasonable is an objective one for the tribunal to decide (as opposed to whether the employer responded in a way that was reasonable). The justification test for less favourable treatment, on the other hand, is a subjective one.
The court upheld Mr Smith's appeal and remitted the matter to the tribunal to work out his compensation.