The Equality Act 2010, like the Disability Discrimination Act 1995 (DDA) before it, imposes a duty on employers to make reasonable adjustments to their practices and procedures so as to not put employees with a disability at a substantial disadvantage. A recent case before the Employment Appeals Tribunal (EAT), Lancaster v TBWA Manchester, has considered the extent of this duty as regards redundancy selection criteria. On the facts of the case, the tribunal concluded the employer did not breach its duty in this regard by failing to adjust its redundancy selection criteria for a disabled employee, a decision upheld by the EAT on appeal.
The Lancaster case
The claimant in this case, a Senior Art Director, suffered from panic disorder and social anxiety disorder, which his employer accepted was a disability for the purposes of the DDA, then in force. Due to a downturn in workload in 2009 the claimant, along with his two fellow Senior Art Directors, was under threat of redundancy. These three were assessed against redundancy selection criteria which included, amongst others, “ability to perform as a team player”, “influence on performance and attitude to others” and “actively participating in company activities and improving the organisation’s creative input.” The claimant received a significantly lower redundancy score than his colleagues and, notwithstanding a repeat scoring exercise after he had lodged a grievance, remained the lowest scorer by some way. He was subsequently dismissed for redundancy.
The claimant brought a tribunal claim alleging, amongst other things, that he had been discriminated against. He contended that he was put at a substantial disadvantage in comparison with people who are not disabled, either because of the three redundancy criteria referred to above, which focused on communication skills, or because of the criteria as a whole, and that this triggered the employer’s duty to make reasonable adjustments. He argued that the three offending criteria should have been removed or, in the alternative, that all of the criteria should have been replaced with objective criteria, such as attendance and disciplinary record.
The employment tribunal rejected the claimant’s disability discrimination claims. Although the tribunal accepted that the criteria disadvantaged the claimant, it decided that the adjustments suggested by the claimant were not reasonable. Removing the three selection criteria which focused on communication skills would have made no difference as he would still have received the lowest score. Furthermore, the tribunal was not satisfied, on the evidence, that replacement of all of the redundancy selection criteria with objective criteria could have prevented the claimant receiving the lowest score.
The EAT upheld this decision on appeal, confirming that the extent to which a proposed adjustment would prevent disadvantage caused by a provision, criterion or practice is a material consideration in determining reasonableness. This was spelled out expressly under the DDA. Although that particular aspect of the DDA isn’t repeated in the Equality Act, it does appear in the Equality and Human Rights Commission’s Code of Practice.
Because removing the three communications skills criteria would not have affected the order of the scores within the pool, the EAT said the tribunal could have reached “no other conclusion” but that such an adjustment was not reasonable.
So far as replacing all the criteria with objective criteria was concerned, the tribunal was not satisfied, on the evidence, that replacing the criteria in the way proposed by the claimant could have avoided his redundancy. This was sufficient to render that adjustment one which it was not reasonable for the employer to make.
A word of caution
The EAT noted that an adjustment which gives an employee “a chance” of avoiding the disadvantage does not necessarily make it a reasonable one. However, on the same day that this decision was published the EAT heard another disability discrimination case (London Teaching Hospital NHS Trust v Foster) in which it stressed that, to uphold a claim that an employer has breached its duty to make reasonable adjustments, a tribunal need not be satisfied that there was a “real prospect” of an adjustment removing the employee’s disadvantage.
It follows from these cases that the fact that an adjustment merely gives an employee some prospect, or a chance, of avoiding the disadvantage does not mean that it is not a reasonable adjustment for the employer to have to make. However, the Lancaster case is clearly helpful in demonstrating that an adjustment which cannot (as opposed to might not) alleviate the particular disadvantage of a practice upon a disabled employee is very unlikely to be a reasonable adjustment for an employer to have to make.
Lancaster v TBWA Manchester  EAT 0460/10, 14 June 2011.