Employment Flash - 5th May 2010

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It can be a reasonable adjustment to medically retire someone and then redeploy them in a different role...

Chief Constable of South Yorkshire v Jelic [2010] UKEAT 0491 09 CEA

The ET had found that a reasonable adjustment could have been made by CC by medically retiring J and then redeploying him in a police staff post. Retirement has pension implications for the CC. If medical retirement followed by redeployment were a reasonable adjustment for the police service this would have serious implications throughout all forces in relation to officers who took medical retirement. It would also impact on an open competitive selection process for such staff. This would not be in the interests of the force or the public in the use of finite resources and the delivery of an effective service. The CC contended that the cessation of the employment relationship meant as a matter of law the duty to make adjustments ceased.

The EAT in concurring with the ET took the view that the duty to make adjustments arose whilst J was still employed by CC. As the duty had arisen then, the termination of employment did not sever the obligation. The ET were entitled to consider whether there was a breach of duty to make a reasonable adjustment by transferring J to a police staff role simply because of the medical pension which derived from J's position as a constable and for which he qualified under the relevant criteria. The EAT did not accept that providing a medical retirement pension and an alternative post fell outside the scope of the DDA.

The ET also found that it would be reasonable to have allowed J to swap jobs with another employee. The EAT agreed such a course could be reasonable notwithstanding the implications for other employees from such a course being available. Support was found by the EAT in Archibald v Fife County Council [2004] IRLR 651 (transfer of employee from a job she can't do to one that she can even if it is at a slightly higher grade) and Southampton City College v Randall [2006] IRLR 18 (new post could be created in situation where reorganisation taking place and SCC were effectively starting from blank sheet of paper in relation to posts). Tarbuck v Sainsbury's Supermarket Ltd [2006] IRLR 664 (no obligation on SS to create a post, which was not otherwise necessary, merely so that a disabled person would have a job) did not assist as the posts in question (transferred from and transferred to) were both in existence at the material time. [The authorities would support the factual scenario of a medical retirement followed by redeployment]

The matter is remitted to the ET due to a lack of reasoning in relation to their decision on medical retirement and redeployment, they did not explain why they rejected CC's arguments in relation to an obligation to consider every officer who was medically retired for an alternative civilian post.