Corporate Livewire
12 November 2014

Disability Discrimination – reasonable adjustments in the redundancy context

An essential feature of disability discrimination law is the positive duty on employers to make reasonable adjustments to alleviate the disadvantage that a disabled employee may suffer in the workplace. A failure to comply will amount to discrimination. The duty is unique in that it may require an employer to treat a disabled person more favourably than others.

The obligation on employers to consider reasonable adjustments arises frequently in redundancy situations. This article will look at some recent cases which clarify the extent of the duty in a redundancy context, and will highlight the practical implications for employers.

When does the duty arise?

The duty to make reasonable adjustments will be triggered where the employer knows, or ought reasonably to know, that an employee has a disability, and that the employee is likely to be disadvantaged by any 'provision, criterion or practice' of the employer. What does this test mean?

  • 'Disability' in the context of discrimination includes any physical or mental impairment which has more than a trivial adverse effect on a person's ability to carry out normal day-to-day activities. This is therefore a fairly wide definition. It also includes a number of conditions which are deemed to be disabilities even if they may not have the adverse effect mentioned.
  • Even if the employer does not have direct knowledge of the disability, the duty will nevertheless arise if the employer ought to have known about it (for example, because it should have been alerted by the employee's absence record or behaviour).
  • 'Provision, criterion or practice' can include any formal or informal policies, rules, practices, arrangements, criteria, conditions or provisions that the employer may apply. This will certainly include any arrangements (such as selection and redeployment) that the employer may put in place in connection with a redundancy exercise.
  • The disadvantage suffered by the employee must be more than trivial or minor, and it must bear some relation to the disability.

The duty applied in recent redundancy cases

Where there is a redundancy situation, an employer must consider whether any of its arrangements to select employees for redundancy will put a disabled employee at a disadvantage.  Most commonly this will arise in the application of the criteria for selection. For example, many employers use levels of sickness absence as one of the selection criteria, but other criteria, such as productivity and communication skills, may adversely affect some disabled employees (whether as a result of absence or because of the particular effects of a disability). In such circumstances, it may be a reasonable adjustment for the employer to discount disability-related absence or disapplying or adjusting certain criteria.

In one recent case, the employer had failed to adjust criteria that placed an employee, whose stroke had affected his productivity and accuracy, at a disadvantage.  The employment tribunal considered that it should have given the employee an uplift in the scoring to alleviate the disadvantage. However, it also said that even if there had been an uplift, the employee would still have lost his job and so the failure was not unlawful. The issue was appealed at the Employment Appeal Tribunal, which disagreed. It commented that the duty is not limited to avoiding dismissal, but that the disadvantage of simply receiving a lower score (which could result in compensation for injury to feelings) is sufficient for the duty to arise.

The duty to make reasonable adjustments in a redundancy exercise is not restricted to the employer's selection criteria. It can also impact on other aspects of the process. Another recent case concerned a disabled employee who was at risk of redundancy and who, along with other employees at risk, had an opportunity to apply for alternative posts through a competitive interview process.  However, his disability meant that he was unable to participate in meetings. The employer was held to have failed in its duty to make reasonable adjustments by not considering alternative ways in which the employee's suitability for the job could have been assessed. Had the employer done so, the employee may have had a chance of being redeployed rather than losing his job. However, that is not to say that the employee would have been automatically appointed to the role, only that the employer should have levelled the playing field.

Practical considerations

What steps can employers who are planning to make redundancies take to comply with their duty, and avoid successful disability discrimination claims? Some key points are set out below:

  • When devising selection criteria, look at each of the criteria in turn and how a disabled person is scored against them – if the disabled employee is disadvantaged, make adjustments to each of the criteria as necessary. It is better to do this at the outset rather than having to revisit if a valid complaint is made.
  • Where 'level of absence' is one of the criteria, you may need to analyse which absences are caused by the disability, and which are "ordinary" absences – only the former need to be discounted. In cases where separating the two types of absence proves too problematic, an alternative approach is to try and ascertain what periods of absence a person with the particular disability would reasonably be expected to have over the course of the average year.
  • Consider making adjustments to any application or interview process for alternative vacancies, to avoid a disabled employee being put at a disadvantage. However, the duty does not extend to guaranteeing the employee a job if they are not suitable for the post.
  • Where there are alternative vacancies which a disabled employee could perform, if adjustments were made, then consider making such adjustments to the role so that the employee is not discouraged from applying.
  • Be aware of the duty to make reasonable adjustments during the ordinary course of business, not just during a redundancy exercise. For example, an employee who can no longer carry out some or all of their duties because of a disability may be entitled to be considered for another job within the organisation. A failure to redeploy a person or make other adjustments in these circumstances may subsequently put them at risk of redundancy, the legality of which may be affected by the previous failure.
  • Ensure that a disabled employee at risk of redundancy does not face a disadvantage in obtaining information, being made aware of the procedure or being consulted about the redundancy.

The area of disability discrimination and reasonable adjustments continue to raise complex issues and it is not always easy for employers to know how far their duties to make adjustments will extend in each individual case. Hopefully, the above will have provided some guidance in the context of a redundancy exercise.