Disability
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Redundancy selection criteria and making reasonable adjustments for disabled employees

Disabled WorkerTwo recent cases illustrate the importance of employers making reasonable adjustments for disabled employees placed at risk of redundancy even if the adjustments are unlikely to have any impact on the outcome of the redundancy exercise

What the law says

Section 20 of the Equality Act 2010 (Act) states that where an employer has a ‘provision, criterion or practice’ which puts a disabled person at a substantial disadvantage in comparison with non disabled employees the employer must take reasonable steps to avoid the employee suffering that disadvantage. The extent of this duty was considered in the following cases.

Dominique v Toll Global Forwarding Limited

Mr Dominique suffered a stroke several years ago which impacted on his physical and cognitive abilities and he was therefore disabled for the purposes of the Act. In 2011 he was placed in a redundancy pool which scored employees by reference to:

  • length of service
  • skill set
  • productivity
  • accuracy
  • flexibility
  • discretionary effort

Mr Dominique was the lowest scoring employee and was therefore selected for redundancy. He brought claims for unfair dismissal, direct and indirect discrimination and failure to make reasonable adjustments. The employment tribunal rejected his claims. Regarding the duty to make reasonable adjustments, the tribunal held that there had been no failure because even if his scores had been adjusted he would still have been selected for redundancy. Any adjustment would therefore have had no impact on the outcome of the redundancy process. Mr Dominique appealed.

The Employment Appeal Tribunal (EAT) held that the employer had failed in its duty to make reasonable adjustments. This was because the productivity and accuracy selection criteria placed Mr Dominique at a substantial disadvantage compared to non disabled employees and the employer did not take any steps to avoid that disadvantage from occurring by adjusting those criteria.

The EAT decided that he was entitled to an award to reflect injury to his feelings. They recognised that if the failure to make reasonable adjustments had meant he should not have dismissed then this would have entitled him to a higher award of compensation.

London Borough of Southwark v Charles

Mr Charles was placed at risk of redundancy and informed that certain positions had been ‘ringfenced’ for him and other at risk employees. Mr Charles was interviewed for the position of noise support officer in March 2011 and was unsuccessful in his application.

In May 2011 Mr Charles was signed off sick for three months and was referred to an occupational health advisor who advised on 17 June 2011 that he was not fit to attend administrative meetings.

On 29 July 2011 Southwark Council (council) confirmed that Mr Charles’s position was redundant. Mr Charles appealed. The council pushed back the termination date and asked Mr Charles to confirm whether he wished to be interviewed for a vacant noise support officer position. Mr Charles enquired about the nature of the work but did not confirm that he wished to be interviewed. Eventually, having received no confirmation from Mr Charles that he wished to be interviewed for the role, the council wrote to him on 25 August 2011 to confirm his redundancy.

The Employment Tribunal held that the council had been aware from 17 June that Mr Charles was suffering from a disability which prevented him from attending administrative meetings, which should sensibly be taken to include interviews as well. The council had failed to make reasonable adjustments by dispensing with the need for an interview, which had resulted in Mr Charles being dismissed and therefore suffering a substantial disadvantage.

The EAT agreed that Mr Charles was put at a substantial disadvantage because he was unable to attend interviews to demonstrate his suitability for alternative employment. However, it held that the Council was not necessarily obligated to dispense with the need for an interview altogether. The adjustment could have been made in some other way, such as assessing his suitability for the role by some other means. The EAT also held that it did not necessarily follow that, had the adjustment been implemented, he would have been appointed to the role. These points will be the subject of evidence and submissions at the future remedy hearing.

Learning point

These cases illustrate the importance of ensuring that you consider the duty to make reasonable adjustments from all angles when making disabled employees redundant, even where, as in these cases, the relevant adjustments might not make any difference to the outcome of the redundancy process.

Source: http://www.shoosmiths.co.uk/client-resources/legal-updates/Redundancy–criteria-making-reasonable-adjustments-8214.aspx

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