Employment Law Advocates

I did promise to report back on this case when the judgment appeared and I apologise for the fact that it has taken me a week to do so. However, this is partly due to the fact that the only really new and interesting point is obiter. This is not the first case to say that a failure to apply Malcolm will not invalidate a finding of disability discrimination where there has been a failure to make reasonable adjustments prior to the dismissal. See my comments about Stafford and Rural Homes v Hughes here. Nonetheless, Justice Cox does provide more detailed reasoning, applying the principle from Clark v Novacold that a person can claim all losses flowing from a failure to make adjustments, including loss of earnings if it results in a dismissal. It is worth noting that this point from Clark v Novacold was not disapproved by the House of Lords in Malcolm and was tacitly approved by them in Archibald v Fife.

The key obiter point is that a dismissal can itself be a failure to make reasonable adjustments, contrary to Clark v Novacold, due to a change in the statutory language which allows reasonable adjustments to be pleaded in a wider range of circumstances. It does not make a difference in this case but there are some cases where it could be important, particularly long-term sick leave cases where there are no adjustments that could be made to allow an employee to return to work but it is reasonable to allow more time to recover before dismissing. More crucially, however, it will hopefully reduce some of the concerns about time limits post-Malcolm. If this decision is approved, employees will no longer have to worry about exactly when a failure to make adjustments occurred and can simply bring a claim within three months of dismissal. Nevertheless, because it is obiter, they would be advised to remain cautious.