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Redeployment in redundancy and disability discrimination issues

The duty to make reasonable adjustments in relation to disabled employees is long established in the UK.  This duty applies before, during and potentially after a disabled person’s employment, including where the employee is among a group of employees facing redundancy.  This article looks at the Employment Appeal Tribunal’s decision in Redcar and Cleveland Primary Care Trust v R Lonsdale [2013] and identifies the key points for employers to consider.

Reasonable adjustments for disabled people

The law in relation to reasonable adjustments states that, where an employer’s “provision, criterion or practice […] puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, [the employer is required] to take such steps as it is reasonable to have to take to avoid the disadvantage.”  This may mean treating the disabled person more favourably than a non-disabled employee.

Disability and discrimination laws:  facts in Redcar

In Redcar, Ms Lonsdale had worked in a Band 6 role.  However, her vision deteriorated and she was registered blind.  She could no longer do her role.  The employer redeployed her in a Band 4 role.  However, within a year, Ms Lonsdale was informed that her role was at risk of redundancy.

The employer’s redeployment policy provided that employees at risk could apply at stage 1 for a post at one grade above their present role, but no higher.  At stage 2, staff could apply for any post.

Ms Lonsdale asked the employer to permit her to apply for a Band 6 role at stage 1; the employer refused and the Band 6 role was filled at stage 1 of the process.  Ms Lonsdale was dismissed for reason of redundancy.  She brought claims for disability discrimination, including a failure to make a reasonable adjustment by not “flexing” the redeployment policy to permit her to apply for a role two grades above her present role, and unfair dismissal.  The Employment Tribunal found that Ms Lonsdale had been subjected to disability discrimination and unfairly dismissed.  The employer appealed.

Unfair dismissal law

The EAT noted that in cases of failure to make reasonable adjustments, it is not always necessary to make a “like for like comparison” with a non-disabled employee.  In this case, Ms Lonsdale was subjected to a substantial disadvantage by being prevented from applying for a Band 6 role.  The reason she was prevented was connected to her having been redeployed from a Band 6 to a Band 4 post because of her visual impairment. The EAT found that it “was not unreasonable to make an exception under the [redeployment policy] to allow for the Claimant’s disability and its consequences,” and therefore she should have been permitted to apply for the Band 6 role at stage 1.

The EAT noted that there was “no definite answer to the question” of whether Ms Lonsdale would have been successful in applying for the Band 6 role.  Her loss of the chance of applying for that role was enough to amount to disability discrimination and therefore her dismissal was an act of discrimination and unfair.

The case has been remitted to an Employment Tribunal to consider how much compensation to award Ms Lonsdale.  The Tribunal will take into account the chances of Ms Lonsdale being successfully appointed to the Band 6 role when making that assessment.

Dismissing an employee with disabilities

In general terms, employment legislation dealing with disability discrimination is designed to help keep disabled employees in work.

This case should act as a reminder for employers to consider the bigger picture when contemplating dismissing an employee with disabilities.  This may include looking at how disabled employees have been affected by previous adjustments made to their role.  Slavish adherence to a particular practice or policy may give rise to a claim of disability discrimination.

In redeployment cases, employers may have to give disabled employees the chance to apply for vacant roles above their grade and should give proper consideration to any application made, including considering whether any adjustments could be made to the role to enable the employee to perform it.

For more information or to discuss any questions you may have about disability discrimination in the workplace, contact David Leslie at dleslie@lyonsdavidson.co.uk.

Posted on Jun 12th, 2013 by Lyons Davidson

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