Hay v Surrey County Council

The Disability Discrimination Act 1995 requires employers to make reasonable adjustments for disabled employees. In Hay v Surrey County Council, the Court of Appeal said that employers do not always have to carry out a formal risk assessment as such to identify what adjustments should be made.

Basic facts

Ms Hay had been working for the council since 1990 and as a mobile library manager since 1996. This involved driving a lorry, wheeling books on a trolley, standing at a desk and replacing books on shelves up to six feet high.

Following surgery to her knee in 2003 which identified a degenerative knee condition, Ms Hay was initially advised not to drive and consistently told in medical reports not to do physical manual work. As a result the council decided to redeploy her. 

Ms Hay wanted to return to her old job, but the council said it could not adjust her duties sufficiently to enable her to continue in that post. Ms Hay was dismissed because she refused the Information Services post she was offered. She claimed disability discrimination and unfair dismissal.

Tribunal and EAT decisions

The tribunal said that, given the number of reports the council had commissioned from medical consultants, it should have carried out a formal risk assessment of her job to ascertain what adjustments were “appropriate and reasonable” for her. That way it would have known what duties she could carry out.

The tribunal went on to say that had the council made some adjustments to her role, such as extending the hours of the current part time assistant to full time, modifying the shelving in the vehicle or swapping some of her duties with someone else, she could have continued in her old job. The offer of another job was therefore unnecessary and concluded that the council had discriminated against her and dismissed her unfairly.

The Employment Appeal Tribunal (EAT) reviewed the tribunal findings in relation to the adjustments it said were required for her job, and concluded that the council had carried out a proper assessment, albeit not a formal one. The tribunal had “raised the bar too high” and its findings had been perverse.

Decision of Court of Appeal

The Court of Appeal considered two main issues:

The requirement for a formal risk assessment - The council argued that the tribunal had been wrong to say that the need for a formal risk assessment was “fundamental” to the case. This had “fatally infected” the whole of its thinking, and caused it to conclude that the assessment was an end in itself. Instead, it should just have asked whether the council had made an informed decision or not.

The Court of Appeal agreed that the tribunal was mistaken when it said that the council was required to carry out a formal risk assessment. However, because it then went on to say what that assessment might have revealed and what the council ought to have done, it had not actually relied on the need for a formal risk assessment to reach those findings. It therefore dismissed this aspect of the council’s appeal.

Medical evidence - The council said because of the advice it received from a number of consultants (that Ms Hay should not drive the mobile library van and was unfit to return to her previous duties), it offered her a completely different and sedentary job.

The Court of Appeal agreed with the council, saying it had clear and consistent evidence that Ms Hay could not return to her old job. The tribunal had ignored that evidence and suggested adjustments that made no sense. Instead, it should have considered whether the council was justified in its decision to redeploy Ms Hay. Given the medical advice (on which the council had relied) there was only one possible answer and there was no failure to make reasonable adjustments.