4. PROTECTING DISABLED WORKERS IN A REDUNDANCY SITUATION

Redundancy selection

Redundancy situations can result in discrimination against disabled employees in a variety of ways. Direct discrimination against a disabled person is unlawful. For example, it would be direct discrimination to single out a disabled employee for redundancy because they take extra breaks to manage their diabetes in the workplace.

“Associative disability discrimination” is also unlawful. For example, it would be unlawful to select an employee for redundancy because she takes emergency dependency leave to care for a disabled child.

As well as direct disability discrimination, section 15(1) of the Equality Act 2010 (EA 10) makes it unlawful to treat an employee unfavourably because of something arising in consequence of their disability. There is a defence if the employer does not know and cannot reasonably be expected to know about the candidate’s disability. There is also a defence if the employer demonstrates that its actions were a proportionate response to a legitimate aim, but only if the employer has already made all reasonable adjustments to accommodate the disability.

For example, an employer who selects a disabled employee for redundancy because of their sickness absence record risks a claim for disability discrimination under section 15(1) EA 10. Where unions are recognised, many negotiated redundancy policies exclude disability-related absence. This is consistent with EHRC best practice recommendations (see Avoiding unlawful discrimination against disabled people, EHRC website).

A new case, HMRC Commissioners v Whiteley [2013] UKEAT 0581/12/1005, suggests two possible approaches when working out how much leave an employer should disregard to reflect disability-related absences. Either employers should use expert medical evidence to establish which periods of absence were due to disability and which were not, or alternatively, employers can establish, based on proper information, what sorts of absence an employee would reasonably expect to take over the course of an average year due to their disability. Proper consultation with the disabled employee, and their full involvement, would be essential in either case.