In NTL Group Ltd -v- Difolco, the Court of Appeal said that employers do not have to make adjustments to a job until a disabled applicant has actually applied for it.
What were the basic facts?
Ms Difolco started work for NTL in March 2002 in Hampshire, but shortly after had an accident at work which left her disabled. She subsequently worked part time from October 2002, partly from her parents’ home in the north east and partly from NTL’s Teesside office.
After being selected for redundancy in February 2004, Ms Dilfolco was offered another job as “suitable alternative employment”. This was a full-time post but NTL said that it would consider changing it to part time if she was appointed.
Ms Difolco wanted the role to be changed to part time before she applied. She was dismissed in March 2004.
What does the law say?
Section 6(1) of the DDA 1995 (ie before it was amended) said: “Where
a) any arrangement made by or on behalf of an employer, or
b) any physical feature of premises occupied by the employer place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.”
What did the tribunal decide?
The tribunal said that to comply with section 6(1), NTL should have first found out whether the job could be done on a part time basis. If so, the company should have offered it to Ms Difolco without making her go through an interview.
It relied on the case of Archibald -v- Fife Council (LELR 92), in which the House of Lords said that employers may have to make a reasonable adjustment by offering disabled employees a vacant role over and above non-disabled employees provided they satisfied the basic minimum criteria.
NTL appealed unsuccessfully to the EAT. It then took its case to the Court of Appeal on the ground that the “arrangements” it had made in relation to Ms Difolco did not amount to a “substantial disadvantage” under section 6. If there was no substantial disadvantage, it argued, there could not be a duty on them to make an adjustment.
What did the Court of Appeal decide?
And the Court of Appeal agreed with NTL. It said that Ms Difolco first had to show, as required under section 6(1) that the “arrangements” it offered put her at a substantial disadvantage.
Ms Difolco argued there were two “arrangements” – that NTL required her to compete for the Teesside job; and that NTL offered it to her on a full time basis only. The Court of Appeal did not consider that the tribunal’s reasoning supported her argument and the EAT was not, therefore, entitled to rule as though it had.
It pointed out that “If the mere fact of advertising for a full-time job can constitute an arrangement for the purposes of the DDA then on the face of it, it would potentially discriminate against the whole innominate class of possible disabled applicants for the job. That, it may well be thought would be a reductio ad absurdum.”
As there was no link between Ms Difolco’s redundancy dismissal and her disability, the Court said that NTL was not under any duty to offer her an alternative position without interviewing her first.
It concluded that employers do not have to make adjustments to a role to “remedy the substantial disadvantage of a disabled potential candidate” until they actually apply for the job.
Comment
This case shows that trade union members who are disabled under the DDA and require adjustments to their jobs (such as part time working) should not avoid applying for positions that are advertised without adjustments. If the employer then refuses to make the necessary adjustment, they may be able to pursue a claim under the DDA.