Wilcox v Birmingham CAB Services Limited UKEAT/0293/10

The EAT confirmed in this case that the duty to make reasonable adjustments under the Disability Discrimination Act 1995 applied only where the employer knew or could reasonably have been expected to know both that the employee was disabled and likely to be substantially disadvantaged by that disability.  Birmingham CAB did not know and could not reasonably have been expected to know that Ms Wilcox was disabled until it received a consultant’s report that had been jointly commissioned at the direction of the tribunal. 

Ms Wilcox was a debt advice case worker.  In early 2007 she asked to work closer to home where she did not need to pay to park as she could not use public transport because of anxiety.  She had not investigated whether she had an underlying medical condition.  When she was asked to work somewhere she did not want to work she was signed off with work related stress.  She delayed attempts by the CAB to obtain a medical report but eventually a therapist provided one in late 2007 stating that she suffered anxiety in relation to travel and heights.  She eventually resigned and claimed disability discrimination.  Medical opinion was that she had suffered from agoraphobia since December 2005 which had a serious impact on her mobility.  The CAB conceded that she had been disabled but the tribunal dismissed her claim holding that the CAB did not know and could not reasonably be expected to know that she suffered from agoraphobia until it received the consultant’s report.   

Ms Wilcox appealed to the EAT who dismissed her appeal.  It was through no fault of the CAB that occupational health advice took some time to obtain and Ms Wilcox was reluctant to acknowledge a psychiatric problem.  

Key point:  Employees who fail to provide information and delay their employers obtaining medical evidence may have difficulty in fixing their employers with knowledge of their disability.

– Redundancy Selection Criteria

Lancaster v TBWA Manchester UKEAT/0460/10

Mr Lancaster was a senior art director in a marketing and advertising agency TBWA.  He had a disability which was a panic and social anxiety disorder.  In 2009 after the loss of a client TBWA decided that it needed to make 1 of its 3 senior art directors redundant through a selection process.  Mr Lancaster was scored lowest of the 3 and was accordingly made redundant.  He complained to the Employment Tribunal that his dismissal was unfair and that his selection amounted to age discrimination.  He also claimed that the application of the selection criteria to him amounted to a policy criterion or practice and caused a particular disadvantage because of his disability and that as a reasonable adjustment the employer should have applied more objective selection criteria in deciding who to make redundant.  The criteria he complained of were the ability to perform as a team player, influencing the performance and attitude of others, participation in company’s activities and improving creative output. 

The tribunal found that even if these criteria were removed he would still have been the lowest scoring candidate.  Changing any selection criteria to focus on other issues would not have prevented the disadvantage from arising.  His age discrimination claim therefore failed but his unfair dismissal claim succeeded.  Nevertheless his compensation was restricted to pay for the 4 weeks’ which the tribunal held that it would have taken TBWA to conduct a proper consultation process.   

On appeal the EAT upheld the decision on disability discrimination but allowed the appeal against the amount of the compensatory award.  It agreed the tribunal was entitled to conclude on the evidence that replacing all the redundancy selection criteria to purely objective criteria would not be a reasonable adjustment.  The fresh tribunal will reconsider whether Mr Lancaster should have been offered and if so whether he would have accepted alternative employment and whether the compensatory award is to be greater than that based on 4 weeks’ additional employment.

Key point:  An employer should choose redundancy selection criteria that do not place any disabled employees at an unreasonable disadvantage, but not to the extent that there is a chance they will not be eligible for selection.