Over the last month we have seen a couple of cases come through the Employment Appeal Tribunal (EAT) relating to the need to make reasonable adjustments during a redundancy process. They serve as a good reminder that, should you have a disabled employee within a redundancy pool, you need to be alive to your employer duty to make reasonable adjustments.

Adjusting the Redundancy Process: London Borough of Southwark v Charles

Mr Charles was employed by London Borough of Southwark (the Authority) as an Environmental Enforcement Officer. A reorganisation of the Authority led to the deletion of Mr Charles’ role.

During the reorganisation consultations, Mr Charles was informed of three alternative positions that he, along with other ‘at risk’ employees, could apply for. In the middle of the consultation process, he was signed off sick with depression. The Authority referred him to Occupational Health who initially concluded “no adjustment required at present”. A later report, however, stated that Mr Charles was not fit to attend administrative meetings. Over the following months (whilst he remained off sick), the Authority and Occupational Health attempted to contact him with details of alternative roles and to determine if he would be able to attend interviews. Failing to make contact with him, he was finally dismissed by reason of redundancy.

On appeal, the EAT agreed with the Tribunal’s finding that Mr Charles, because of a disability, had an inability to attend administrative meetings which included interviews for alternative positions and the Authority had both discriminated against him by requiring him to attend such an interview and had failed to make reasonable adjustments by dispensing with the need for such an interview and that in consequence he was placed at a substantial disadvantage by being dismissed.

Adjusting the Scoring Criteria for Selection: Dominique v Toll Global Forwarding Ltd

In this case Mr Dominique had brought claims for unfair dismissal and unlawful disability discrimination. Mr Dominique was a long serving employee who in 2003 suffered a stroke leading to time off work. This led to him suffering from physical and mental impairments affecting his mobility and cognitive skills.

A decision was made to reduce headcount. A redundancy process commenced and Mr Dominique was included in a pool of employees for scoring. Having scored particularly badly in two heavily weighted categories, he was dismissed by reason of redundancy in February 2011. He appealed on a number of grounds including that allowances should have been made for the fact that he could not work as quickly as others due to physical restrictions in his arms and legs.

The Tribunal considered the selection criteria and found that they were fair in broad terms but accepted that adjustments should and could have been made to the two categories that Mr Dominique scored badly in by adding an extra point at the initial scoring stage. However, having made the adjustments to the scoring, the Tribunal found that Mr Dominique would still have scored the least and therefore would still have been made redundant. Therefore it held that as it would not have avoided his dismissal, it was not a reasonable adjustment.

Mr Dominique appealed the Tribunal’s decision and the matter was heard by the EAT. The EAT disagreed with the Tribunal and concluded that despite the fact that an adjustment to the scoring criteria for selection for redundancy would not have avoided the Claimant’s dismissal, the duty to make reasonable adjustments should not have been limited to avoiding dismissal, but should have been extended to avoid the detriment flowing from the disadvantage and the hurt feelings that would have resulted.

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Your EW Adviser will assist you through any redundancy process from start to finish. However, here are three major elements that your Adviser will consider if you have a disabled employee affected by the process:

1. Whether adjustments need to be made to the redundancy process. In the case of Charles above, the employer should have considered alternatives to a formal interview process e.g. completing a written assessment or, perhaps, holding an informal interview at the employees’ home.
2. Whether the selection criteria should be adjusted. The main adjustment recommended is likely to be the discounting of periods of disability-related absence, where that is one of the criteria. As the case of Dominique above shows, even if the reasonable adjustment would not result in the employee keeping their job, it should still be made to ensure that the employee is not placed at a disadvantage by receiving a lower score which may attract an injury to feelings award.
3. Whether adjustments will need to be made to alternative vacancies within your business for the disabled employee to be able to do the role. If adjustments would be required, you should ensure that the employee is made aware that these would be made so that (s)he will not be discouraged from applying and those interviewing will assess the employee without any perception that they would be unable to do the job.