Facts
Mr Taylor (T) suffered from sever arthritis and intestinal and other problems, and it was accepted that he had a disability for the purposes of the Disability Discrimination Act 1995 (the DDA).
As part of a redundancy exercise, he was offered alternative employment 50 miles from his home. T declined this offer on grounds of his disability, which he felt would prevent him from undertaking the travelling. He was then dismissed.
An employment tribunal found that T’s employer, Dumfries and Galloway Citizens Advice Services, had unfairly dismissed him and also failed to make reasonable adjustments to the alternative job offer, such as enabling it to be performed primarily from T’s home town, where he carried out his original role.
Compensation for disability discrimination to be calculated on the basis of the higher salary attached to the alternative employment
The case went to the Court of Session (which is the Scottish equivalent of the Court of Appeal) on the issue of whether T’s compensation should be calculated on his original salary, or on the basis of the higher salary which the alternative role carried. The Court held that the job in respect of which the employer discriminated was that which carried the higher salary. The loss sustained by T comprised the opportunity to obtain a job that commanded a higher salary and compensation should be calculated accordingly.
Lessons to be learned
These are twofold.
First, it is not uncommon for disabled employees to refuse offers of what employers might initially think to be alternative employment, particularly where these are based in a different location which would involve additional travelling for the employee. Where this happens, employers must look into whether the refusal is indeed related to the disability, and assess whether reasonable adjustments can be made to the job offer.
Second, this case clarifies the basis upon which compensation should be calculated where the original and alternative roles carry different salaries. Where the job in respect of which the employee has suffered discrimination carries a higher rate of pay, compensation will be calculated according to that higher rate.