The EAT in Lancaster v TBWA recently considered the extent of an employer’s obligation to make reasonable adjustments to selection criteria where a disabled employee is at risk of redundancy.
The employee, who was a senior art director at a marketing and advertising agency, suffered from a panic and anxiety disorder. Three of the sixteen redundancy selection criteria applied by the employer required communication skills. He argued that these criteria put him at a disadvantage as a result of his disability. He also contended that the employer should have used purely objective criteria (attendance, length of service, etc) and that its failure to do so was a breach of the duty to make reasonable adjustments.
The EAT agreed with the employment tribunal that these were not reasonable adjustments; removing the criteria related to communication skills would have made no difference to his selection (he would still have come last) and, on the facts, it was reasonable for the employer not to use purely objective criteria given the creativity and seniority required for this particular role.
This case was decided under the Disability Discrimination Act 1995 which expressly required tribunals to have regard to the extent to which the proposed adjustment would prevent the disadvantage arising. Those words have not been replicated in the Equality Act 2010. However, it is still an important consideration and the Equality Commission’s statutory code of practice includes the effectiveness of a step as one of the factors which might be taken into account in deciding whether a particular adjustment is reasonable.