Employers consistently underestimate how far they are required to go to accommodate the disabilities of their workers. A recent decision called Randall however, took even seasoned employment lawyers by surprise. In appropriate circumstances, it is now clear that employers can be required to “devise” a new role for a disabled worker.

A different type of discrimination

One of the striking differences, when comparing disability discrimination legislation to other anti-discrimination legislation, is the positive requirement placed upon employers to make “reasonable adjustments” for their disabled workers.

The decision in Randall, that in an appropriate case an employer can be required to “devise” a new job for a disabled worker, introduces an unwelcome degree of uncertainty. Before Randall, most employers had presumed, based on previous cases and the legislation, that an employer’s duty to its disabled workers did not go as far as the creation of a new role.

The facts

Mr Randall was a classroom lecturer but worked for several hours a week in noisy workshop and began to experience problems with his voice.

He was off work in 2000 and 2002. He came back and from September 2002 the timetable took no account of his condition. Despite pleas for a reassessment, no changes were made and Randall went on sick leave again.

A reorganisation in the department took place in his absence and he was forced to apply for a newly-created post for which he was ultimately unsuccessful.

He then took ill health retirement, but subsequently brought successful claims for constructive unfair dismissal and disability discrimination.

The employment tribunal’s decision

The Tribunal found that Southampton City College had failed to make reasonable adjustments in relation to the problem experienced by Mr Randall which the college accepted was a disability.

The Tribunal placed heavy emphasis on the preliminary duty of an employer to consider making adjustments and assessing a disabled employee. If an employer fails to assess an employee who is disabled and to work out what adjustments may be reasonable, that failure alone is likely be a breach.

Secondly, the Tribunal’s decision emphasises that the examples set out in the Disability Discrimination Act of the reasonable adjustments an employer may be required to make are not exhaustive. An employer is required to make all the reasonable adjustments which are appropriate in the circumstances; hence why an employer can be required to go as far as “devising” a new role.

It is also important to bear in mind that there is no minimum qualifying period that an employee must work before the Disability Discrimination Act applies. Employers may also have to consider reasonable adjustments for casual or agency workers as well as permanent staff.

It is now clear that a neglected or forgotten employee is potentially discriminated against where he is not consulted, his condition is not assessed and reasonable adjustments are not clearly mapped for future rehabilitation and continued employment.

In certain circumstances, such as where there is a reorganisation, an employer may be required to look at what existing work is available and potentially create a role out of that work. Cautious employers should consider whether they can “devise” a role from existing work where the employee is incapable of performing the role they were hired for.

Clive Day is an employment lawyer with Eversheds LLP.

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