The recent case of Chief Constable of South Yorkshire Police v Jelic (UKEAT/0491/09/CEA) raised some interesting questions regarding the scope of an employer's duty to make reasonable adjustments.
Mr Jelic was a police officer who developed chronic anxiety syndrome after being transferred to the Traffic Department in Sheffield. Mr Jelic was absent on sick leave on a number of occasions between 2002 and 2004. Upon his return to work in November 2004, he was re-assigned to a (temporary) "recuperative" role which involved minimal face-to-face contact with the public, as suggested by an Occupational Health report. For almost three years, Mr Jelic had no further periods of sickness absence. In 2005, the Occupational Health doctor assessed Mr Jelic again. The doctor concluded that the likelihood of Mr Jelic being fit to resume a public-facing role before his retirement was "remote" and that, if his "non-confrontational" job could not be made permanent, the police force ought "...to look for some sort of environment for him similar to the one he is currently in". After a restructure, the nature of Mr Jelic's role changed and officers in his position were required "to deal directly with incidents and with members of the public who attended the police station, and to conduct investigations relating to missing from home enquiries".
Various individuals within the police force gave consideration to what should happen to Mr Jelic given the change in his role. There appeared to be a lack of communication among the individuals involved who seemed, on the whole, to have very little understanding of the Disability Discrimination Act (DDA) or the Respondent's policies. There was also next to no consultation with Mr Jelic with a view to considering what reasonable adjustments could be made to allow him to continue working. Ultimately, a senior police officer arranged for Mr Jelic to be fast-tracked for medical retirement (again without consultation with Mr Jelic). The Chief Constable eventually approved Mr Jelic's retirement from the police service with the provision of an ill health pension.
A Tribunal held that, whilst it would not have been reasonable to maintain Mr Jelic's role as it was (given the overall changes in the scope of the job), it would nonetheless have been reasonable to search for other non-public-facing roles within the organisation, and, when a suitable position was identified, swap the occupant of that position with Mr Jelic. The Tribunal even identified another position within the organisation which ought to have been considered, that held by PC Franklin. If a "swap" of this nature was not possible the Tribunal said that it would have been a reasonable adjustment to retire Mr Jelic on health grounds and then immediately re-employ him in a civilian support staff position (which was available and was being advertised at the time Mr Jelic's retirement was being considered). It should be noted that Mr Jelic did not advance either of these suggestions prior to the termination of his employment.
Before the Employment Appeal Tribunal, it was submitted on behalf of the Police Force that, as a matter of law, it was not open to the Tribunal to find that it would have been a reasonable adjustment to swap the jobs of Mr Jelic and PC Franklin. It was contended that the obligations in the DDA did not extend that far, and indeed s18B(2) (which provides a list of steps that an employer may need to take in relation to a disabled person in order to comply with its duty to make reasonable adjustments) only refers to the possibility of a disabled person filling a vacant role. The EAT disagreed with this contention, stating that s18B(2) is not exhaustive. The question instead is merely "what steps would it be reasonable for the employer to have to take in the circumstances?". The Tribunal was therefore not precluded, as a matter of law, from holding that it would have been a reasonable adjustment to create a new job (by way of a swap) for a disabled employee, if "the facts of the case support such a finding."
No doubt most employers will be of the view that the EAT in Jelic has gone too far, making it very difficult for employers to assess with any certainty what would constitute a "reasonable" adjustment. However, small employers should take some comfort from the fact that the EAT in the Jelic case no doubt took into account the size of the employer and the fact that the Force employed individuals in a wide variety of different capacities. The EAT is not saying that in all cases swapping the role of a disabled person with a non-disabled person fulfilling a different role (and one which the disabled person is capable of doing) will be required. Instead, the EAT is saying that such a measure is capable of being a reasonable adjustment, in other words, it should not be automatically ruled out.
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