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Redundancy - be prepared to think outside the box

A redundancy process can often be littered with potential pitfalls.  On a very basic level, employers need to place employees at risk of redundancy; embark on a genuine consultation process; apply objective selection criteria to any pool for redundancy; consider whether there are any alternatives to redundancy and, assuming there is no alternative, dismiss the employee on the correct notice – sounds simple? Well, not quite.  Redundancy processes can provide HR professionals with some serious headaches and it is important to think outside the box when dealing with unusual circumstances.  No employer sets out deliberately to discriminate against employees during these processes but two recent cases in the EAT confirm the extra steps that an employer might need to take when dealing with a disabled employee during a redundancy process. 

In the case of London Borough of Southwark v Charles the EAT considered whether an employer had failed to make reasonable adjustments for Mr Charles during the redundancy exercise which led to his dismissal.  The case involves a rather complicated timeline of events.  Mr Charles was first notified that he was at risk of redundancy in March 2011.  He was subsequently unsuccessful at interview for one of the alternative roles (that of Noise Support Officer) which had been identified.  Following this he asked to be placed back into the redeployment pool and had three months to find an alternative post.

At the beginning of May 2011, Mr Charles was told that he would be dismissed by reason of redundancy (but at the same time told to reapply for the Noise Support Officer role when it was re-advertised).  A few days later, the Claimant was signed off sick for three months due to "sleep paralysis agitans" (a condition which disrupted his sleep) which led to depression.  The Tribunal accepted the Respondent's contention that this was the first time it knew of the Claimant's disability and its cause.  Mr Charles was referred to the employer's Occupational Health who initially concluded that "no adjustment was required".  However, in June 2011, the Occupational Health told the Respondent that the Claimant was not fit to attend "administrative meetings" (which the Tribunal concluded would include "interviews" for new roles).  This is a key date in the timeline as the Respondent knew that Mr Charles' condition had a practical impact on his ability to take part in the redeployment process. 

Whilst the Claimant was off sick, he was invited to interview again for the post of Noise Support Officer but he did not tell the Respondent that he was interested in the role and did not attend an interview.

The Respondent sent a dismissal notice to the Claimant on 29 July 2011.  The Claimant responded with a detailed letter of appeal against his impending dismissal.  Further correspondence ensued and whilst offering the Claimant the opportunity to express interest in available positions, the Respondent continued to refer to the requirement for an interview as part of the process.  The Claimant's appeal was heard in November (and he was represented by a union official) but was not upheld and he was dismissed.

The Claimant bought Tribunal claims for unfair dismissal and disability discrimination.  His claim for unfair dismissal was dismissed as the Tribunal was satisfied that there was a redundancy situation, there was adequate consultation and the Claimant had been offered alternative posts.  However, he succeeded in his discrimination claim.  The Tribunal accepted that the requirement to attend an interview was a "practice" which put the Claimant at a disadvantage.  The Respondent knew of his disability and so was under a duty to make reasonable adjustments – ie dispensing with the requirement for a formal interview.  In addition, it was accepted that the requirement to attend an interview meant that the Claimant was treated unfavourably because of something arising in consequence of his disability and no attempt was made to justify the differential treatment. 

The EAT dismissed the Respondent's appeal.  It concluded that the Tribunal was entitled to make the conclusions it did in relation to the alleged failure to make reasonable adjustments and the alleged discrimination arising from disability.  The EAT did make a further comment in relation to the reasonable adjustment noting that if the reasonable adjustment which should have been made was that the Claimant should not have been subjected to a formal interview process but that his suitability should have been assessed by some other means, it does not automatically follow that he would have been appointed to the role; which would clearly have an impact on remedy. 

I do have some sympathy for the employer in this case – it appeared to attempt to engage with the Claimant; offered the possibility of alternative roles and presumably felt frustrated by his lack of contact.  A situation which is often faced by employers is the need to move a situation forwards and I can understand the approach taken.  However, the case provides a stark reminder that employers must consider ways of removing disadvantages faced by disabled employees and for example look at how they might be assessed against other candidates in order to reduce the risk of allegations of discrimination.  

In the case of Dominique v Toll Global Forwarding Ltd the EAT considered the issue of redundancy scoring criteria and the extent to which adjustments should be made for disabled employees who may be disadvantaged by their application.  It concluded that reasonable adjustments should not be limited to avoiding dismissal; indeed the receipt of lower scores was in itself a detriment or disadvantage, which could cause an individual distress or 'injury to feelings', and as such could be subject to the duty to make adjustments.

Mr Dominique was a long serving employee who had suffered a stroke, which caused both physical and mental impairments affecting mobility and cognitive skills, and was disabled for the purposes of the Equality Act 2010.  Mr Dominique's disability meant that he struggled with the computer system and frequently made mistakes at work.  The Claimant was selected for redundancy on the basis that he scored the lowest when the selection criteria were applied to the pool.  He scored particularly badly in two categories: the ability to handle allocated work and his error/mistake level.  The Claimant appealed against his dismissal alleging that there had been a failure to make reasonable adjustments for his disability (but did not state what adjustments he felt should have been made).  The Claimant's appeal was rejected and he was dismissed. 

Mr Dominique bought several Tribunal claims including an alleged failure to make reasonable adjustments to the scoring criteria.  On this point the Tribunal found that there had been no failure to make reasonable adjustments since adjusting the scores would not have avoided Mr Dominique's dismissal.  The EAT however considered that the criteria applied to Mr Dominique placed him at a substantial disadvantage and this alone was detrimental.  The EAT took the view that the Tribunal had erred by focussing on dismissal as the object to be avoided.  It considered that whilst the discriminatory impact of the detriment suffered by the Claimant would be significantly less than dismissal it should be a factor to be taken into account and may warrant an injury to feelings award (albeit on the lower end of the scale).

This case is a further reminder to employers of the extent of the duty to make reasonable adjustments when dealing with disabled employees and to ensure that caution is exercised when applying selection criteria to a pool.  It is important to look at how employees are dealt with at every stage of the redundancy process rather than focussing on the end result and avoiding a discriminatory dismissal.

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