Representation:-

1. an employer has a positive duty to make reasonable adjustments under Disability Discrimination Act 1995 s.6 for the benefit of an employee who by reason of disability has become incapable of doing the job for which he or she is employed if he or she could do another job within the same organisation. This is in contrast to the position in sex and race discrimination cases in which positive discrimination can actually be unlawful.

2. this positive obligation to make reasonable adjustments can even mean that a disabled existing employee must be allowed to 'trump' other applicants for a job even if he or she is not the best candidate.

3. the appropriate comparators when considering whether an "arrangement" places a disabled employee at a disadvantage are other employees of the employer who are not disabled but are subject to the same "arrangement" (in this case a contract term providing that employees could be dismissed if they could not perform the essential functions of their job).

For relevant notes on the position from 1st October 2010 see Equality Act 2010/positive action and/or Equality Act 2010/protected characteristics/disability .