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The duty to make reasonable adjustments
Under section 20 of the EA 10, employers have a duty to make reasonable adjustments for disabled people at work. In the context of redundancy and redeployment, the duty requires employers, wherever a provision, criterion or practice (for example a redundancy selection procedure) puts the disabled person at a substantial disadvantage compared with someone who is not disabled, to take reasonable steps to avoid the disadvantage.
There are many examples of employers being taken to the employment tribunal for failing to make reasonable adjustments in the context of redundancy.
In Travis v Electronic Data Systems Limited [2004] UKEAT/0476/03/0403, the EAT decided that where a disability-related absence by an employee with schizophrenia resulted in de-skilling and redundancy, it would have been a reasonable adjustment to offer training to update those skills, which could have avoided the redundancy.
In Berry v GB Electronics (EAT/0882/00), it was disability discrimination to call a profoundly deaf employee to a meeting to announce his redundancy without arranging for a signer to be present. It would similarly be disability discrimination to deny a deaf employee the opportunity of a face-to-face meeting to raise concerns.
The duty to make reasonable adjustments extends to providing information about redundancy and voluntary redundancy. For example, where a worker has a learning disability, employers should consider providing information in Easy Read formats and ensuring that someone suitable spends time explaining the options to the worker (EHRC).
A reasonable adjustment could also include arranging for a disability support worker or a member of the employee’s family to attend the consultation meetings.
The statutory duty to make reasonable adjustments can strengthen the position of a disabled employee in a restructuring or redundancy selection process in other ways.
For example, a disabled employee can take priority over non-disabled co-workers for suitable vacancies when implementing a redeployment policy, even if the disabled employee is not at risk of redundancy. In Kent County Council v Mingo [2000] IRLR 90, Mr Mingo was not at risk of redundancy, but he had become unfit for his existing role through disability. Successive attempts to move to a more suitable role had failed because all the suitable posts were quickly filled by internal candidates at risk of redundancy. There was a collective redeployment procedure in place giving priority to suitable “at risk” staff. The EAT said it would have been a reasonable adjustment for the Council to put Mr Mingo ahead of staff who were at risk of redundancy, as long as he was suitable for the vacancy. The fact that non-disabled employees could lose out as a result was irrelevant. This case also shows how the rights of disabled employees take priority over collective agreements where the two clash.
Here is another good example:
Ms Londsdale joined her employer, a Primary Care Trust (PCT), as a senior occupational therapist on band 6. Six months later, she suffered significant sight loss leaving her unable to perform her role. Following an occupational health assessment and some adjustments, she was given a new role as a workforce development coordinator on band 4. When an internal restructuring eliminated 30 posts including hers, at-risk employees were offered redeployment under a two-stage HR Framework. At stage 1, staff could apply for up to five posts at their own band level or one above but no higher. If there was a “close match” between the old and new post at stage 1, they could be slotted in without a competitive interview.
Under the rules, Londsdale could apply for band 4 or 5 posts, but not her preferred band 6 role in staff and patient safety, even though she had originally joined the PCT at band 6. Instead, the band 6 post was awarded to another at-risk colleague.
The EAT said a reasonable adjustment would be to allow Ms Lonsdale to apply for the band 6 role at stage 1 of the HR framework in competition with the other eligible candidate, although it would not have been a reasonable adjustment to have slotted her into that post without competition. The failure to make this adjustment lost her the chance to apply for a job she would have had a “real prospect” of achieving.
Since the decision to make Ms Lonsdale redundant was inextricably linked to the PCT’s failure to make reasonable adjustments to its redeployment policy, the dismissal itself was also an act of discrimination.
Redcar & Cleveland Primary Care Trust v Lonsdale [2013] UKEAT/0090/12/RN
In Archibald v Fife Council [2004] UKHL 32, it was a reasonable adjustment for the employer, a local authority, to offer the employee a higher grade job she was capable of performing, without competitive interview.
But in Lancaster v TBWA Manchester [2011] UKEAT/0460/10, it was not a reasonable adjustment to alter selection criteria that were designed to test core requirements of the role.
Similarly, in Wade v Sheffield Hallam University [2013] UKEAT0194/12/1504, it was not a reasonable adjustment to appoint someone to a post for which she failed to meet the essential criteria.
There is no obligation to “red circle” (i.e. protect) a disabled employee’s terms and conditions. If the new job is on a lower rate of pay and the employee accepts it, the employer does not have to maintain the terms and conditions from the previous post (British Gas Services v McCaull [2001] IRLR 60). Nor is there a requirement for the employer to dismiss other employees to make way for a disabled employee whose job has been made redundant.
In Leeds Teaching Hospital NHS Trust v Foster [2011] UKEAT/2011/0052, the EAT said it would have been a reasonable adjustment to place an employee who was off sick with stress and depression as a result of workplace bullying on the Trust’s redeployment register. The Trust employed around 15,000 people and the EAT found that there was a good prospect that if Mr Foster had been placed on the register while he was still fit to work, his later dismissal for ill-health could have been avoided.
In some circumstances, for example an on-going reorganisation, the duty to make reasonable adjustments can even involve creating a new job, although each case depends on its facts:
Mr Randall, a lecturer, developed dystonia through having to shout to be heard above the sound of machinery, leading eventually to his taking sick leave. Two months later, his employer, a college, began a restructuring process. Randall, still off sick, was not invited to consultation meetings or given copies of minutes. Instead, his employer tried to steer him towards early retirement. He applied for a new post with a job description very similar to his own and was interviewed, but no account was taken of his 26-year teaching record, high success rates or teaching techniques. Those assessing him had no personal knowledge of his work and his appraisal records had not been retained. He was made redundant in a process described by the tribunal as “grotesquely unfair”.
The EAT said that especially as the College admitted to having a “blank sheet of paper” when devising new roles in the restructuring, it would have been a reasonable adjustment to devise a job that took account of the effects of his disability, harnessing the benefits of Mr Randall’s experience and successful record. This employer failed to consider reasonable adjustments and instead focused on persuading Randall to retire. The dismissal was unfair and discriminatory.
Southampton City College v Randall [2006] IRLR 18
However, there is no general obligation to create a new job especially for the disabled person if that job does not already exist (Tarbuck v Sainsbury Supermarkets Limited [2006] IRLR 664).
It is not a breach of the duty to make reasonable adjustments for the employer to fail to support an application for ill health retirement (Thameside Hospital NHS Foundation Trust v Mylott [2010] UKEAT/0399/10/1304).
Employers should be encouraged to arrange updated disability awareness training for all managers tasked with implementing a redundancy or redeployment procedure, including any senior managers hearing appeals, and to make this training available to union reps.