Kenny v Hampshire Constabulary 1999 [IRLR 76]
The duty on an an employer to make reasonable adjustments for disabled people is at the heart of the Disability Discrimination Act, and is a unique feature in comparison with the Sex Discrimination and Race Relations Acts.
In Kenny v Hampshire Constabulary 1999 (IRLR 76), the issue to be decided by the Employment Appeal Tribunal was the extent of the employer's duty when a disabled person applies for a job.
Mr Kenny has cerebral palsy. He applied for the post of Analyst / Programmer with the Hampshire Constabulary. He was offered the post, subject to the Constabulary making appropriate arrangements for him, in that he needed personal assistance in going to the toilet. Volunteers were sought for this task from within the Department where he was to work, but not enough people came forward. For security reasons, the police had decided that it was not possible for him to work from home. An application to fund a support worker was made under the Access to Work Scheme, but a decision on the application had to be delayed beyond the time when the Constabulary considered that they had to reach a decision, and as a result the job offer was withdrawn.
The Employment Appeal Tribunal held that the Tribunal were correct in finding that the Constabulary had not discriminated against Mr Kenny contrary to Section 5 (2) or Section 6 of the Act, and dismissed his appeal. According to the Employment Appeal Tribunal, the Constabulary were not in breach of the Act in failing to provide him with a personal carer to assist him with his toilet needs. Although the Act imposes an obligation on employers to make reasonable adjustments to accommodate employees and job applicants with disabilities, this duty was restricted to "job-related" matters, and assistance with going to the toilet fell outside this duty.
This obligation does not extend to matters which are personal to the employee or job applicant. An employer for instance is not obliged to make adjustments to accommodate employees who require assistance in travelling to and from work. The Employment Appeal Tribunal acknowledge that this may deprive a disabled person of a job, but "it seems to us, a line must be drawn somewhere".
Quite where that line will be drawn in other cases is not altogether clear from this decision, and to some extent every disability affecting an employee's performance at work could be categorised as either job related or personal, depending on one's perspective. However what is significant in this decision is the emphasis that the Employment Appeal Tribunal places on the Code of Practice. The Code makes no reference to an employer being required to provide personal assistance in going to the toilet, and accordingly, the Tribunal conclude that it cannot have been Parliament's intention for this to be a consideration for employers. Once again, therefore, we are being referred back to the Code to determine the application and interpretation of the Act.