Law lords ruling gives green light to positive discrimination

A landmark House of Lords decision means employers will be forced to positively discriminate in favour of disabled employees, according to Croner Consulting, one of the UKís leading providers of business advice and support.

The House of Lords in Archibald v Fife Council have ruled that an employer may be obliged to appoint a disabled worker in preference to better qualified workers who are not disabled.

Archibald was a female roadsweeper who after illness was found to be disabled and subsequently unable to undertake her duties. Her employers provided a number of opportunities including retraining, allowing her to seek alternative work in other areas and helping her by shortlisting her in each case. However she failed to secure an alternative role and was dismissed - because she was not the best candidate for the jobs she applied for.

The House of Lords in hearing the case held that it was not a sufficient defence to prove that a person with a disability was not the best candidate and that the law imposes a duty to make reasonable provisions for the disabled even to the extent of positive discrimination.

Croner Consulting are warning all employers that the ruling means that disabled employees may need to be given preferential treatment when being considered for a job alongside more qualified candidates.

This is a very surprising judgement, and the stark reverse of the line we would expect the law to take, said Richard Smith, employment law expert at Croner Consulting, which is part of Wolters Kluwer UK. A duty not to discriminate against people with disabilities has been turned into an act of positive discrimination in their favour.

Employers will find the ruling quite remarkable as it is in contradiction to the common understanding of íequal opportunity for allí and disregards the notion of recruiting the best candidate for the vacancy. It appears extremely odd to be obliged to turn down a better qualified candidate for fear of unlimited compensation claims.

Employers will need to exercise greater prudence than ever before if they are to keep in line with the law and will find it hard to understand why they should not pick the best person for a job. There is a high risk of employers acting in a way that the ordinary individual would find reasonable but where tribunals will be entitled to award massive sums of compensation. They will think this wholly unfair to them and lacking in commercial reality