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Redundancy criteria should have been adjusted although disabled employee would still have been dismissed

The duty to make reasonable adjustments in relation to a disabled employee is generally intended to help the employee from being placed at a disadvantage in relation to getting or remaining in employment. This article looks at a recent Employment Appeal Tribunal (EAT) case, where making a reasonable adjustment would not have prevented the dismissal.

In Dominique v Toll Global Forwarding Limited (TGFL), the EAT has held that the employer failed in its duty to make reasonable adjustments when it did not adjust certain redundancy criteria that placed a disabled employee at a substantial disadvantage in relation to his scores.

Definition of disability

The claimant was employed by TGFL in their invoicing department. He suffered from physical and cognitive impairments as a result of a stroke, which meant he met the definition of a ‘disabled person’.

In January 2011, TGFL announced that it would have to make redundancies and the claimant was informed that he was included in the pool for selection. The selection criteria used to score the claimant and his colleagues were:

  • Length of service and absence;
  • Skill set;
  • Productivity;
  • Accuracy;
  • Flexibility;
  • Discretionary effort.

As the claimant scored lowest, he was informed that his employment would terminate on 28 February 2011. His scoring was particularly bad in relation to productivity, as he could not work as quickly as others because of physical restrictions in his arms and legs.

Disability discrimination

The claimant brought claims for unfair dismissal and disability discrimination, alleging that adjustments should have been made to the choice of redundancy criteria, as well as the redundancy scoring.

An employment tribunal found that he had been disadvantaged by the inclusion of the productivity and accuracy criteria, as well as the weightings of those criteria. The employment tribunal went on to conclude that, while the inclusion of the two criteria had been proportionate, there had been no failure to make reasonable adjustments, since adjusting the claimant’s scores would not have allowed the claimant to avoid dismissal. In reaching this decision, the tribunal relied on Lancaster v TBWA Manchester in which the EAT held that there was no duty to make a reasonable adjustment to redundancy scores where adjusting some of the criteria would not have led to a different outcome.

The claimant appealed.

Disabled employee

Where a provision, criterion or practice places a disabled employee at a substantial disadvantage compared to non-disabled people, the employer must take reasonable steps to avoid the disadvantage being complained about.

The EAT held that the employment tribunal had erred by focusing on the dismissal as the thing to be avoided. It said that the tribunal should have considered the question of detriment or disadvantage more generally, particularly as the productivity and accuracy criteria placed the claimant at a substantial disadvantage, which was itself a detriment.

Vento guidelines

The EAT commented that it is difficult to see as a matter of practice how a disadvantage that could have been prevented by a reasonable adjustment that has not been made can be justified. Furthermore, if the tribunal had been unable to find justification, it is likely that it would have made an award for injury to feelings, although at the lowest scale of the Vento guidelines.

One issue which remains outstanding is the relationship between the justification defence and the duty to make reasonable adjustments in a redundancy exercise. The case has been remitted back to the tribunal for further consideration of this point.

Lessons from Dominique v Toll Global Forwarding Limited

It remains to be seen whether this decision will stand as good law, given that previous judgments had emphasised the importance of the link between making reasonable adjustments and keeping a disabled employee in work.

However, for the time being, the decision means that employers who are scoring employees in a redundancy exercise are more vulnerable to claims for failure to make reasonable adjustments than previous case law suggests. Therefore, employers should carefully consider adjusting criteria to avoid any disadvantage placed on a disabled employee.

For more information about this decision, or to discuss how the issues raised in this article may affect your business, contact Lyons Davidson’s employment law team.

Posted on Sep 4th, 2014 by Lyons Davidson

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