The Employment Appeals Tribunal (“EAT”) has recently given an interesting ruling on  redundancy selection which could open the door to more claims from disabled employees.

Background

In Dominique v Toll Global Forwarding Limited the employee had suffered from a stroke and as a result had both physical and mental impairments which constituted a disability. These impairments meant that the employee struggled with a computer system which had been in place for some time and also made frequent mistakes in his work.

The business needed to reduce headcount and Mr Dominique was pooled with colleagues from his team. The selection criteria for redundancy were categorised under the broad headings of length of service and absence, skill-set, productivity (including mistake levels), flexibility and discretionary effort. The employees were all scored first by their line manager and then by four other managers who had dealt with that particular employee.  The claimant scored the lowest and was selected for redundancy.

The Employment Tribunal found that the use of selection criteria that assessed productivity and accuracy put the claimant at a substantial disadvantage, of which the employer should have been aware. The employer, therefore had a duty to make reasonable adjustments. However, the Tribunal went on to conclude that even if reasonable adjustments had been made, Mr Dominique would still have been dismissed because, although his score would have increased by one point, it would still have been lower than that of his colleagues.  The Tribunal decided, therefore, that  there had been no failure to make reasonable adjustments.

The EAT’s decision

Mr Dominique appealed and the the EAT concluded that the Tribunal had fallen into error in one respect. In effect the EAT ruled that the Tribunal had taken too narrow a view of the detriment to which the claimant had been subjected as a result of the unadjusted selection criteria. Although the Tribunal looked at whether the dismissal would have been avoided (deciding that it wouldn’t), what it failed to go on to consider was the more general detriment to the claimant, including possible hurt feelings, of being given a lower score than he would have been had the criteria and weighting been adjusted. The EAT considered that attaining a lower score was in itself a detriment constituting discriminatory treatment. The EAT sent the case back to the Tribunal to consider the level of compensation, which it suggested would be confined to an award for injured feelings in the lowest band for such awards (currently £660 – £6,600).

The EAT went on to decide that because there had been a failure to make reasonable adjustments, the Tribunal must also reconsider its decision to dismiss the claimant’s separate claims of indirect discrimination and unfavourable treatment arising from the claimant’s disability.  The Tribunal had concluded that any such discrimination had been justified and, therefore, was not unlawful. However, its deliberations were based on the premise that the employer had not failed to make reasonable adjustments. Although a failure to make reasonable adjustments is not fatal to a justification defence under the Equality Act 2010, it is still a relevant factor to be weighed in the balance, according to the EAT.

Comment

This decision leaves employers open to more liability than previously thought in situations where they apply selection criteria to their disabled employees in redundancy scenarios. It underlines the importance of making reasonable adjustments to selection criteria, and other elements of the redundancy process, for disabled employees, even if the adjustments will not, ultimately, prevent those employees from being dismissed. Employers must be mindful of the disadvantages faced by their disabled employees both during a redundancy selection process as well as at the conclusion of that process.