Mackay disability case favours employer

An employer’s failure to consult with a disabled employee over options available to them is not of itself a failure to make reasonable adjustments, the Employment Appeal Tribunal (EAT) has held.

In Scottish and Southern Energy plc v Mackay, the employer was held not to have breached its responsibilities under the Disability Discrimination Act 1995 for failing to explore satisfactorily with its employee—an electrician suffering a debilitating depressive illness—his commitment to employment elsewhere in the company.

The EAT confirmed that tribunals should follow the approach set out in Tarbuck v Sainsbury Supermarkets Ltd, that a failure to consult over options is not a failure to make reasonable adjustments. It ruled that Mid-Staffordshire General Hospitals NHS Trust v Cambridge should no longer be followed.

However, the EAT upheld the tribunal’s finding of unfair dismissal, despite expressing that this has “caused us some concern”.

Daniel Barnett, employment law barrister at 1 Temple Gardens, says: “It remains good practice for employers to carry out a full risk assessment; not doing so might not be discriminatory in its own right, but it runs the risk the employer might miss a reasonable adjustment and be liable as a result.”