Scottish and Southern Energy plc v Mackay
The Disability Discrimination Act 1995 (DDA) says that it is unlawful discrimination for employers “to fail to make reasonable adjustments”. In Scottish and Southern Energy plc v Mackay, the Employment Appeal Tribunal (EAT) confirmed an earlier decision that although it is good practice to consult, employers will not be in breach of the duty if they don’t.
Mr Mackay worked for the company on the island of Lewis from 1980. In 2001, he started to get migraines because of increased work pressure and in May 2003 went off with depression.
The company obtained a number of medical reports which all said he was unfit to return to work, but in January 2004 he agreed to work as a supernumerary in the company’s power station in Stornoway. He went off sick again in July 2004.
The company obtained two psychiatric reports in September and early 2005, which both said he was still unfit unless his work concerns were resolved. It then convened a formal review of his situation in May 2005 (having cancelled one in November due to the effect it would have on his health), after which he agreed in early September to take up a vacancy in the Stornoway power station.
However, after a meeting on 29 September about his long term sickness, the company dismissed him with effect from 30 September 2005 because, it said, there seemed to be no prospect of him being able to return to work. Mr Mackay appealed, but his appeal was rejected. He claimed disability discrimination, among other things.
Section 3A(2) of the DDA requires employers to make reasonable adjustments both to their premises and to their working arrangements to enable disabled people to compete on a level playing field with the able bodied.
The duty to make reasonable adjustments arises when the “provisions, criteria or practices” or the “physical features” of the workplace put a disabled job applicant or existing employee at a substantial disadvantage in comparison with a non-disabled person.
The tribunal decided that Mr Mackay was disabled within the meaning of the DDA. It then went on to hold that, as it was company policy to retrain employees, it had treated Mr Mackay less favourably by not offering him that chance.
It had also discriminated against him by applying a criterion (to return to his old job of appliance repair engineer) that placed him at a substantial disadvantage (the harm to his health). The company should therefore have taken such steps as were reasonable to prevent the provision having that effect (in other words, made reasonable adjustments) but had failed to do so.
As it had never directly asked Mr Mackay whether he would be interested in retraining as a mechanical crafts person, the tribunal said it could not see how the company came to the conclusion that he did not have the necessary motivation. This failure to find out was a failure to make reasonable adjustments.
The company appealed.
And the EAT agreed with the company that it had not failed to make a reasonable adjustment. It said that the case of Tarbuck v Sainsbury’s Supermarkets Ltd (2006, IRLR 664) made clear that “whilst it is good practice to consult, the failure to do so does not of itself involve an independent breach of the duty to make reasonable adjustments.”
It pointed out that the tribunal had “emphasised that the issue was not whether the claimant should have been offered the craft job; it was whether that possibility should have been explored more fully with him”. Nor did it identify any other failings.
This, said the EAT, fell clearly within the scope of the Tarbuck decision which has been followed in a number of other EAT decisions. “Accordingly, whilst we accept that a failure to investigate may in principle amount to disability related discrimination, and such a conclusion would not be inconsistent with the Tarbuck case, that was not the conclusion which the Tribunal reached here.”
Although this decision is disappointing, it underlines the importance of employees identifying what would constitute a reasonable adjustment as soon as possible, not least because they are uniquely well-informed to do so. That in itself might help their confidence in assuming control over their workplace situation.