The EAT has held that an employer should have made a reasonable adjustment to redundancy selection criteria which placed a disabled employee at a substantial disadvantage, even though the employee would have been dismissed for redundancy in any event if the adjustment had been made.

Dominique v Toll Global Forwarding Ltd

Mr. Dominique was employed by Toll Global Forwarding Ltd ("Toll") in its charging department, which was responsible for producing invoices. He had suffered a stroke which caused physical and mental impairments affecting his mobility and cognitive skills, which constituted a disability under the Equality Act 2010 (the "Equality Act").

Toll decided to make one position in the charging team redundant. The selection criteria used included criteria related to productivity and accuracy, both of which carried a heavy weighting.

Mr. Dominique received the lowest score overall, and scored particularly badly on the productivity and accuracy criteria. He was dismissed for redundancy. He brought claims for unfair dismissal, direct and indirect disability discrimination, discrimination arising from disability and failure to make reasonable adjustments.

The Tribunal dismissed all of his claims. In its reasons, the Tribunal decided that the use of the criteria was proportionate and justified, but that it would have been a reasonable adjustment to increase Mr. Dominique's scores for productivity and accuracy by 20 percent. However, it held that such an increase would not have had an impact on the decision to dismiss him, and so the reasonable adjustments claim failed.  Mr. Dominique appealed.

EAT Decision

The EAT held that there was no direct discrimination but allowed the appeal in respect of justification and the duty to make reasonable adjustments.

Reasonable adjustments

The EAT held that the Tribunal was wrong to limit its consideration of the reasonable adjustments claim to whether it would have avoided dismissal. The duty extends to avoiding other (more minor) detriments. The EAT noted that the Tribunal had found that Toll should have made an adjustment to Mr. Dominique's scores, and that in itself was a detriment and hurt his feelings, regardless of whether it resulted in his dismissal.

Justification

Mr. Dominique argued that the Tribunal should have considered the failure to comply with the duty to make reasonable adjustments before making a decision on justification with regard to the claims of indirect discrimination and discrimination arising from disability. The old law (Section 3A of the Disability Discrimination Act 1995 ("DDA")) had provided that "if…a person is under a duty to make adjustments … but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty.". However, there is no equivalent provision under the Equality Act, which superseded the DDA. The EAT held that there is no strict legal requirement to consider an alleged failure to make a reasonable adjustment before considering justification. However, it held that where there is a link between the reasonable adjustments claimed and the detriments giving rise to the indirect discrimination and disability-related discrimination claims, as a matter of logic the Tribunal would normally need to consider the failure to make the adjustment when considering the issue of justification. It is hard to see that the relevant practice could be justified if, at the same time, the detriment caused by it could have been avoided by making a reasonable adjustment.

Comment

Where redundancy selection criteria may have a substantial disadvantage on an employee with a disability, employers must consider making adjustments even if it is clear that the employee will still be selected if the adjustment is made. Otherwise, the simple failure to make the adjustment may amount to a detriment and give rise to an injury to feelings award.