• Robert Spicer

Redundancy and disability discrimination

Updated: Jun 12

Disability

Disabled workers may be selected for redundancy because of the employer’s failure to make reasonable adjustments to allow for their disability. The disabled may be disadvantaged in selection criteria in relation to issues such as mobility and sickness absence. Employers have a duty to modify selection criteria to make reasonable adjustments.

In relation to disabled workers, employers should take additional measures to seek alternative employment.

Public authority workers should carry out an equality impact assessment before deciding on selection criteria.

McCorry and others v McKeith [2017] IRLR 253, Northern Ireland Court of Appeal

M was employed as an advice assistant. She had a disabled daughter who was looked after by a family friend while she was at work. Her employer thought that M’s place was at home. She was told, against her wishes, to be absent from work for some periods to care for her daughter. M was later dismissed for redundancy. She complained of associative direct disability discrimination. The industrial tribunal found that she had established a prima facie case that she had been discriminated against because she had been the primary carer of her disabled daughter. The burden of proof therefore shifted to the employer which had not put forward any convincing or coherent explanation for its decision to make her redundant. The employer appealed to the Northern Ireland Court of Appeal.

The appeal was dismissed. There was evidence of a difference in status, a difference in treatment and a reason for differential treatment. In the absence of an adequate explanation, a tribunal could conclude that the employer had committed an unlawful act of associative disability discrimination.

X v Y Ltd (2018) UKEAT 0261-17-0908

X suffers from Type 2 diabetes and obstructive sleep apnoea. His employers had concerns about his performance. He complained of disability discrimination. He received, anonymously, an email from a lawyer to another lawyer which set out how to use a redundancy procedure to dismiss X, when in reality it was a cloak for dismissing him for performance and sickness issues. X wished to use the email in his complaint. The ET refused to admit it on the basis that it was legally privileged. X appealed to the EAT.

The appeal was allowed. The email could be used in ET proceedings. Advice sought or given for the purpose of iniquity could not be privileged. The advice in the email was an attempted deception of X and of the ET. The iniquity in the email was to disguise acts of victimisation or discrimination as a redundancy dismissal.

Russell v College of North West London [2014] Eq Opp Rev 252:28, EAT

R suffered from Meniere’s disease (a disorder of the inner ear) and was accepted to be a disabled person. She was selected for redundancy when the Bradford Score (a scoring mechanism) showed that she had the highest sickness absence in her pool. She complained of unfair dismissal, disability discrimination, victimisation and harassment. The ET dismissed all the complaints except for unfair dismissal. The tribunal found that she had been unfairly selected because the scoring mechanism was fatally flawed. It applied an 80% Polkey deduction. R appealed to the EAT.

The EAT ruled that the selection criteria were applied equally to disabled and non-disabled employees. R had been selected for redundancy not because of her disability but because of her level of absence.

Even if all disability-related absences had been ignored, R would still have been dismissed because the level of her non-disability related absence was also higher than that of the next most absent employee.

Charlesworth v Dransfield Engineering Services Ltd (2017) Morning Star, July 28, EAT

C was employed by D as a branch manager. In November 2014 it was decided that his job could be deleted and that this would save D £40,000. C was diagnosed with renal cancer and was off work sick from October to December 2014. In 2015 C was given four weeks’ notice and dismissed for redundancy. C complained of direct disability discrimination and discrimination because of something arising in consequence of his disability. The ET rejected the claims. It found that D would not have treated someone without a disability differently from the way in which C was treated. D needed to make savings and the redundancy had nothing to do with his disability. C had not been dismissed because of his absence. C appealed to the EAT.

The appeal was dismissed. The ET's decision that the Claimant's absence resulting from his disability was not an operative cause of his dismissal for redundancy was reached without error of law or perversity.

Balson v Foray Motor Group Ltd UKEAT/0288/16/RN

B was disabled because of depression. He was made redundant following his scoring the least number of points in a redundancy exercise. He complained of disability discrimination in that he had suffered unfavourable treatment in his scoring and dismissal and that his ability to score well was adversely affected by his depression. The ET dismissed the claim. He appealed to the EAT, arguing that the tribunal had erred in preferring the evidence of the employer’s witness and B’s manager.

The appeal was dismissed. The reasoning of the ET had been sound and did not disclose any error of law.

JP Morgan Europe Ltd v Chweidan [2011] IRLR 673, CA

C was employed by JPM as an executive director. In 2007 he suffered a serious back injury. He returned to work for restricted hours. C complained that his 2007 bonus had been reduced because of his disability. He was dismissed for redundancy and complained that his selection for redundancy had been because of his disability. The employment tribunal found that he had been unfairly dismissed and subjected to direct disability discrimination. JPM appealed to the EAT and then to the Court of Appeal.

The Court of Appeal found that the tribunal’s decision in relation to direct discrimination could not stand. A non-disabled person would similarly have been dismissed.

IPC Media Ltd v Millar [2013] IRLR 707, EAT

M was employed by IPC as a journalist. She suffered from osteoarthritis. She was made redundant following a company restructuring. She was not given the opportunity to apply for two vacancies for which the ET considered she was potentially appointable. She complained of disability discrimination. The ET ruled that the failure to give her the opportunity to apply for the vacancies was because of her absences caused by her disability and was discrimination arising in consequence of disability. IPC appealed.

The appeal was allowed. There was no evidence that the relevant decision maker was aware of M’s absence history. There was no evidential basis for the burden of proof to have shifted.

Redcar and Cleveland Primary Care Trust v Lonsdale [2013] Morning Star, October 4, EAT

L was employed by C in a band six position. Her eyesight deteriorated and she was registered blind. She was assessed by occupational health and redeployed into a band four post. C underwent a restructuring exercise. L was told that her band four post was at risk of redundancy. She asked if she could apply for a band six post. This was refused and a disabled colleague was appointed to the band six post. L complained of disability discrimination, including a failure to make a reasonable adjustment because C had not allowed her to apply for the band six role. The ET found that C had failed to make a reasonable adjustment. C appealed to the EAT.

The appeal was dismissed.

L had suffered a substantial disadvantage when she was redeployed from a band six to a band four post as a direct result of her visual impairment. That was the reason she was precluded from applying for the band six role.

By failing to allow L to apply for the higher-grade post, the employer had not taken into account that disabled employees can sometimes be treated more favourably than those who are not disabled.

References:

Whiffen v Milham Ford Girls’ School [2001] IRLR 468, CA

Hampson v Department of Education and Science [1990] IRLR 302, HL

Rolls Royce plc v UNITE the Union [2009] EWCA Civ 387

R v Hammersmith & Fulham LBC ex p NALGO [1991] IRLR 249, DC

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