The Court of Appeal has handed down its decision in NTL Group Ltd v Difolco.
Mrs Difolco, who was partially paralysed and could only work part-time, was made redundant. She was offered the chance to apply for another job as being suitable alternative employment. This other job was advertised on a full-time basis but she was told that (should she be appointed) the employer would consider changing the role to part-time. However, she refused to apply unless the job was changed to part-time before she applied.
She claimed that by failing to convert the job to part-time, the employer had failed to make reasonable adjustments.
The Court of Appeal, disagreeing with the EAT, held that this could not amount to a failure to make reasonable adjustments. Until Mrs Difolco had applied for the job, no duty to make reasonable adjustments arose. As Laws LJ said: "If the mere fact of advertising for a full-time job can constitute an 'arrangement' for the purposes of the DDA then on the face of it it would potentially discrimination against the whole innominate class of possible disabled applicants for the job. That, it may well be thought, would be a reductio ad absurdum." (para. 13)
NTL Group v Difolco