Under the Equality Act 2010 (EqA) employers have a duty to make reasonable adjustments where a provision, criterion or practice places a disabled employee at a substantial disadvantage compared to non-disabled employees. This duty can of course apply to the scoring of disabled employees in a redundancy exercise. In those circumstances an employer will be wary of selecting a disabled employee for redundancy if allowances have not been made for any impact that the employee’s disability may have had on their redundancy selection scores.
However, according to a recent Employment Appeal Tribunal (EAT) case, Dominique v Toll Global Forwarding Ltd, the duty to make reasonable adjustments to redundancy scores can still arise even though those adjustments would not avoid selection for redundancy.
The facts
Mr Dominique was one of four employees who worked for Toll Global Forwarding Ltd (Toll) in their invoicing department. Mr Dominique had suffered a stroke a few years ago and he was left with both physical and mental impairments which constituted a disability. In January 2011 Toll informed the invoicing team that redundancies would have to be made: Mr Dominique was placed in the pool for selection.
Mr Dominique was scored against a fairly standard set of selection criteria during two stages. At both stages Mr Dominique achieved the lowest score, with his score for productivity being particularly low.
Mr Dominique was selected for redundancy. He appealed, claiming that that Toll had failed to make reasonable adjustments to his scores to take account of the fact that he could not work as quickly as others in the team due to his disability. Mr Dominique’s appeal was unsuccessful and he was made redundant on 28 February 2011.
The Employment Tribunal claim
Mr Dominique brought claims against Toll for both unfair dismissal and disability discrimination. The Tribunal decided that Mr Dominique had not been unfairly dismissed but that he had been disadvantaged by the inclusion of productivity and accuracy as selection criteria. That said, the Tribunal found that there had been no failure to make reasonable adjustments because adjusting Mr Dominique’s scores would not have avoided dismissal anyway.
Mr Dominique appealed to the Employment Appeal Tribunal (EAT).
The EAT decision
The EAT decided that the Tribunal was wrong to simply focus on the actual dismissal as the detriment. The EAT held that the Tribunal should also have considered the issue of disadvantage and detriment in a wider sense.
Accordingly, the EAT held that the productivity and accuracy selection criteria placed Mr Dominique at a substantial disadvantage and that Mr Dominique’s scores should have been adjusted up to take account of his disability.
Interestingly, the EAT held that the scores should have been adjusted up so as to avoid any injury to feelings to Mr Dominique regardless of whether he would still have been dismissed anyway.
The EAT then remitted the case back to the Tribunal with an indication that if an injury to feelings award was to be considered, it would be likely to be at the lower end of the scale.
Conclusion
When employers are including disabled employees in selection pools for redundancy they should be careful not to solely focus on dismissal as the only potential detriment. If reasonable adjustments are not made to disabled employees’ scores they could still bring a claim for disability discrimination and injury to feelings even if the adjustment would not have made any difference to the eventual outcome. As the above case demonstrates, an injury to feelings award can still be made even if the dismissal itself was technically fair.
For advice on redundancy, disability discrimination or any other aspect of employment law, please contact Jeremy Crook.
Jeremy Crook is a solicitor in the dispute resolution team in St Austell, he has experience in contentious employment matters, having successfully acted for numerous employer and employee clients. If you need help with any employment issues, or with persuading your insurer to allow you to choose your own solicitor, please contact Jeremy on 01726 74433 or email: solicitors@stephens-scown.co.uk