The EAT has hammered yet another nail in the coffin of the argument that an employer's failure to consult a disabled employee over alternatives to dismissal (or conduct a risk assessment) is, itself, a failure to make reasonable adjustments giving rise to liability.
The EAT confirms that the correct approach is that set out in Tarbuck (2006), and that the earlier line of authorities based on Mid Staffordshire General Hospitals (2003) should no longer be followed.
Thus there is plainly no longer scope for arguing that an employer who fails to investigate redeployment or reasonable adjustments is thereby in breach of the DDA. It is necessary for the Claimant to go a step further and establish precisely what reasonable adjustments could have been made to retain him/her in the workplace.
Scottish & Southern Energy plc v Mackay