Discrimination: employer’s requirement that disabled employee should apply for suitable role did not amount to reasonable adjustment

A flight attendant was discriminated against after her employer failed to transfer her to a ground-based role that would have accommodated her disability. Ryanair’s stipulation that the employee should apply for suitable roles through an open, standard recruitment process amounted to “not making any adjustments whatsoever”.

Legal principles

The Equality Act 2010 imposes a duty on employers to make reasonable adjustments to help disabled employees overcome the disadvantages they suffer at work because of their disability.

The EHRC Employment Statutory Code of Practice suggests that one of the potential adjustments that employers might be required to make is “transferring the disabled person to fill an existing vacancy”. Case law suggests that this might require employers to appoint a disabled employee to an alternative post, even if that employee is not the best candidate, and without undergoing a competitive interview.

Facts

The Claimant worked for Ryanair as a senior flight attendant. She was diagnosed with a benign neoplasm (a non-cancerous brain tumour) and disclosed her diagnosis during a welfare call from an HR officer employed by Ryanair. After some months’ absence, the Claimant asked Ryanair if she could have a phased return to work and undertake ground duties while she waited for surgery. However, Ryanair told the Claimant they would not allow her back to work while she was medically certified as unfit for flight attendant work.

The Claimant renewed her request to return to work on ground duties and produced a statement of fitness to work from her GP, which recommended a phased return to work, altered hours and amended duties. The Claimant informed Ryanair that she had seen a position of cash office support operative, which she identified as suitable alternative employment. Ryanair replied saying it was “unreasonable” for the Claimant to expect it to “create a ground-based job for you where one simply does not exist” and that she would have to apply for the cash office support role through the application form as Ryanair “cannot ‘allocate’ this position”.

The Claimant submitted a grievance that Ryanair had breached the Equality Act by failing to carry out a risk assessment, make reasonable adjustments or consider other roles for her within the business and, not satisfied with the grievance outcome, resigned from Ryanair.

Claim

The Claimant brought claims against Ryanair for constructive unfair dismissal and disability discrimination.

ET

Upholding both claims, the ET ruled that Ryanair’s failure to provide the Claimant with a ground-based role to accommodate her disability amounted to disability discrimination (failure to make reasonable adjustments) and constructive unfair dismissal.

Regarding the claim for failure to make reasonable adjustments, the ET said: “To recruit an existing employee through an open, standard recruitment process was not making any adjustments whatsoever because this puts an individual with a disability in the same position as an external, non-disabled candidate. It does not even afford a long-standing employee with 13-year experience and an exemplary record… any priority whatsoever.”

The ET ordered that there should be a further hearing to determine the Claimant’s compensation.

Ms M Dworak v RyanAir Ltd ET3201628/2018

Comment

As this case illustrates, an employer’s duty to make reasonable adjustments for a disabled employee can include offering her another role. The duty is not met by putting the onus on the employee to apply for the role or undergoing some competition for the role with other employees.

Warning: this news item is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This news item is not intended to constitute legal advice in any specific situation. Readers should obtain legal advice and not rely on the information in this article.