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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> NTL Group Ltd v Difolco  EWCA Civ 1508 (12 October 2006)
Cite as:  EWCA Civ 1508
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE J BURKE QC)
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE LEVESON
|NTL GROUP LTD||CLAIMANT/APPELLANT|
|- v -|
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR I HARE (instructed by Messrs Bishop and Sewell) appeared on behalf of the Respondent.
Crown Copyright ©
"On 19 February 2004, Miss Difolco, Mr Melrose and another manager, Mr Langley, discussed alternative employment for her. She felt that the only suitable opportunities would be part-time roles in the North-East, because of her continuing health needs. She was informed that there was a full-time job in Teesside which matched some of her skills but that she would have to apply for it and go through a selection process and that, if successful, it might be possible for her to carry out the role on a part-time basis. Miss Difolco felt unable to apply for this role because it was not intended to be a part-time role and she did not wish to be pressurised into working full-time until she felt able to do so. There is no suggestion that any other alternative post was proposed; and her employment ended on 12 March 2004."
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."
"It would also have been a reasonable adjustment to assess the suitability of the role in Teesside for the claimant without the need for a competitive selection procedure. In this regard the tribunal has taken into account the case of Archibald v Fife Council  UK H 32 in which the House of Lords considered whether the duty to make reasonable adjustments included transferring a disabled person to fill an existing vacancy without the need further to undergo competitive interviews and their Lordships thought that it clearly involved more than allowing her to apply for the post and appointing her if successful. In this case the tribunal is satisfied that it would have been a reasonable adjustment for the respondent to ascertain whether the role in the North East could have been performed on a part-time basis and, if so, offer the post to the claimant without the need for a competitive selection procedure."
"It is true that there is no finding of substantial disadvantage expressed in paragraph 16 of the Tribunal's judgment; but in this instance the Tribunal were considering not the highly contentious issue as to whether Miss Difolco's disabilities put her at a substantial disadvantage in relation to the redundancy selection exercise but whether her disabilities put her at a substantial disadvantage when, her job having gone, she was competing with others for alternative employment. Although we have been critical of the Tribunal for not setting out their reasons or their conclusions earlier in this judgment, it would, as we see it, be wholly excessive to have required the Tribunal to have set out in terms that Miss Difolco in the new situation was at a substantial disadvantage; and we cannot imagine that there was any issue as to whether she l I was at such a disadvantage. We are tempted to say that plainly she was at such a disadvantage; but it is not our task to put forward our own view of the facts; what we would say is that the Tribunal had shown throughout that they were conscious of the need to prove a substantial disadvantage before the duty to make adjustments was triggered and that their judgment on this topic must have implicitly involved the finding that Miss Difolco was at a substantial disadvantage in looking for alternative employment because of her disability which rendered her able to work only a 3-day week."
"there is no requirement that the substantial disadvantage suffered by the disabled person should be as a result of prior discrimination of the employer."
"If the ET were entitled to find (as they did) that the Claimant had been discriminated against under section 6(2) by the imposition of a competitive selection process for redeployment, it was only because and as a result of the Claimant being of a substantial disadvantage by virtue of having lost her substantive post. Hence, once the EAT removed that latter finding and remitted it for rehearing, the substantial disadvantage for the purposes of the redeployment claim fell away. With no substantial disadvantage, there necessarily was no duty to make any adjustments at all."
"… to make any adjustments to a role to remedy the substantial disadvantage of a disabled potential candidate before that candidate has applied for the job".
As a proposition this seems to me to have much force. 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.
"It is only when the relevant arrangements have been identified that one could proceed to consider whether those arrangements place the disabled person at a substantial disadvantage in comparison with persons who are not disabled."
Order: Appeal allowed.