The aim of this paper is to forward legal advice to Ms Kalinda Sharma with regards to her rights in relation to her employment with Florrick Designs. It will also provide her with advice as to what action she should be in place to take, in accordance with her grievances with the employer which include discrimination on the grounds of no reasonable adjustments being made as to her disability, as well as direct discrimination on the basis that disability.
Firstly it will be necessary to establish Ms Sharma as an employee. Article 3 of the Employment Rights (NI) Order 1996 defines an employee as an individual who works under a contract of employment. Although ...view middle of the document...
Failure to Make Reasonable Adjustments:
The first issue to be raised is the manner of the interview procedure which Ms Sharma had to go through to provide her with the opportunity to obtain a new position within the company, thus retaining her employment. The duty to make reasonable adjustments is personal in nature and it is for Ms Sharma to show that she has been placed at a substantial disadvantage in comparison with her fellow employees who are not disabled. She requested reasonable adjustment for her interviews upon submitting her application. She received however, no such adjustment. Section 6(1) of the DDA 1995 highlights the duty which falls upon an employer to make reasonable adjustments with regards to arrangements as well as physical features of the property (although the current case is only concerned with the former). This is so to prevent the arrangements from placing the disabled person concerned at a disadvantage, compared to others who are not disabled.
There are a couple of separate instances of this within the current case. Firstly, Ms Sharma was expected by her employer, who was only to knowledgeable of her disability, to partake in two 45 minute interviews back to back. This does not comprehend reasonableness with regards to taking Ms Sharma’s disability into consideration. This would have affected her performance particularly when it came to the second interview. Secondly, no physical adjustments have been provided for Ms Sharma in either of the two interviews as requested, resulting in her having to balance on a chair.
It came about in the case of Clark v Novacold that the unjustified failure of an employer to meet the duty to make reasonable adjustments is in itself an act of discrimination. The failure to make reasonable adjustments for a disciplinary hearing led to it being deemed procedurally unfair and discriminatory for a reason related to disability in the case of OCS Group Ltd v Taylor. As such it would appear initially that Ms Sharma has a case here.
Within the current case, there are no grounds for the employer to rely on in terms of the justification of not knowing about the disability or that it would place Ms Sharma at a substantial disadvantage. This justification would be by virtue of section 6(6) of the DDA 1995, however it has already been established that the employer was fully aware of the disability suffered by Ms Sharma. Florrick Designs were under a duty to provide reasonable adjustments under s6 of the DDA 1995 and in failing to do so, along with not being justified in doing so, they have discriminated against Ms Sharman contrary to s5(2) of the DDA 1995.
As a result of this failure, Ms Sharma clearly did not have the opportunity to perform to her potential in the interviews and so, she could not participate fully in the procedure by which it was to be decided whether or not she would be hired. Following the line of reasoning in OCS Group v Taylor, this procedure could...