Disability Discrimination & Redundancy

In a recent case the Employment Appeal Tribunal had to decide whether an employer had failed to make reasonable adjustments for a disabled employee during a redundancy exercise.

The Facts

In this case Mr Charles was employed by the London Borough of Southwark, who went through a redundancy involving the department where Mr Charles worked.

Because of his disability Mr Charles was unable to attend administrative meetings. At first instance the Employment Tribunal decided that this included interviews and that the London Borough of Southwark had failed to consider making reasonable adjustments to their process by looking at different ways to assess Mr Charles in the redundancy situation.

Southwark were interviewing employees at risk of redundancy to ascertain their suitability to be redeployed into alternative roles.

Mr Charles argued that he could have been interviewed at home, could have provided information in advance or had some less formal process of assessment. He also argued that as he had been employed for several years his managers could have been consulted about his suitability.

The Law   

The duty to make Reasonable Adjustments can arise where a disabled person is placed at a substantial disadvantage by:

1)      An employer’s provision, criterion or practice (PCP). I.e. the practice that all employees must have an interview for a new post.

2)      A physical feature of the employer’s premises. I.e. a building with stairs and no other means of access.

3)      An employer’s failure to provide an auxiliary aid. The Equality and Human Rights Commission Code, states: “An auxiliary aid is something which provides support or assistance to a disabled person. It can include provision of a specialist piece of equipment such as an adapted keyboard or text to speech software. Auxiliary aids include auxiliary services; for example, provision of a sign language interpreter or a support worker for a disabled worker.”

When making a decision about a reasonable adjustment the Employment Tribunal will determine, objectively, whether a particular adjustment would have been reasonable to make in the circumstances.

The Employment Tribunal will take into account a number of factors when making their decision about a reasonable adjustment.

The Decision

The Employment Appeal Tribunal agreed with the Employment Tribunal in their decision that the Borough had failed to make reasonable adjustments to their process.

Mr Charles had been places at a disadvantage because he could not attend interviews.

In reaching their decision they did note that although there was a requirement to make adjustments in this situation it could not be concluded automatically that Mr Charles would have been successful in his application. This was subject to evidence and submissions at a separate hearing to determine Mr Charles compensation, known as a remedy hearing.

Points to note

As an Employer you have an obligation to ensure that you make necessary adjustments to your processes and procedures for disabled employees, including disability discrimination and redundancy situations.

You should not approach things in a ‘one size fits all’ manner, and should look at ways to ensure that all employees are on a level footing.

When it comes to promotions or redundancy situations there is generally not an obligation to just place the disabled employee into the new role, but you should think carefully how you assess them for the role.

There are lots of examples of reasonable adjustments on the Equality and Human Rights Commission Website which you can access by clicking here EHRC.  Alternatively you can always give me a call and I would be happy to discuss your specific situation with you.

If you would like to discuss your business needs or this case further please do not hesitate to contact me alison@realemploymentlawadvice.co.uk.