Does an employer have to make reasonable adjustments to redundancy criteria which place the disabled employee at a substantial disadvantage, even though it won’t make any difference to the outcome?

This is the question that has been posed to the Employment Appeal Tribunal recently in the case of Dominique -v- Toll Global Forwarding Limited.  The employee, Mr Dominique, had suffered a stroke resulting in physical and cognitive impairments.  He made frequent errors and struggled to cope with the computer system that had been in place for some time.  The employer decided to put the four employees in the invoicing department into a pool of selection for redundancy.  They scored the employees using selection criteria including length of service, absence, skills, productivity, accuracy, flexibility and discretionary effort.  The line manager who did the scoring was moderated by a second round of scoring carried out by four other managers who had had dealings with the team.

Mr D scored lowest in both the assessments, particularly in relation to productivity.  Having been selected for redundancy and given the right of appeal, he alleged that there had been a failure to make reasonable adjustments in relation to his disability.  He argued that allowance should have been made for the fact he couldn’t work as quickly as others due to the physical restrictions on his arms and legs.  His employer rejected this argument and went ahead and dismissed him.

Mr D brought claims for unfair dismissal and disability discrimination under the Equality Act.  The Tribunal were prepared to accept that he had been disadvantaged by the inclusion of productivity and accuracy in the assessment, but it found that including those two criterion were proportionate.  They considered that even if they had given him an extra point for each of the two criterion, amounting to a 20% uplift, he would still have scored the lowest in the pool.  Mr D appealed.

This is where he was successful.  The EAT were prepared to accept that the issue in the case was not just about dismissal.  The Tribunal should have considered the question of detrimental disadvantage more generally.

The productivity and accuracy criteria placed Mr D at a substantial disadvantage and this in itself was detrimental.  Whilst the impact was much less significant than dismissal (just hurting Mr D’s feelings), it needed to be weighed in the balance.  As a matter of practice, the Appeal Tribunal found that it was difficult to see how, where a reasonable adjustment has not been made, this can be justified.  They found that an award for injury to feelings should have been made in respect of this detrimental treatment, albeit at the lowest scale of around £600.

This decision undoubtedly makes employers more vulnerable to claims arising from redundancy exercises.  An employer needs to consider whether reasonable adjustments need to be made to those criterion, even where it won’t affect the overall outcome.  It may even be prudent to factor in the need to take into account an employee’s argument about their scoring when you design your redundancy exercise.  If you are prepared to ‘give a little’ you will be shown to be fair, even though it may still result in the employee being selected.  By making an adjustment, you will remove one of the employee’s arguments from them and show that you have listened to them in consultation meetings or at appeal which is likely to impress an Employment Tribunal when making findings in relation to fairness.