Disability

Employers are allowed to use attendance as a criterion for selection but should exclude disability-related absence (HMRC v Whiteley [2013] UKEAT 0581/12/1005).

Employers must make reasonable adjustments to selection criteria and selection methods to eliminate substantial disadvantage to disabled employees. Examples from cases have included:

• offering extra training where lengthy disability-related absence left the employee at increased risk of redundancy (Travis v Electronic Data Systems Limited [2004] UKEAT 0476/03/0403);

• adjusting consultation arrangements. For example, in Berry v GB Electronics EAT/0882/00, the employer discriminated against Mr Berry, a profoundly deaf employee, by calling him into a meeting to announce his impending redundancy without arranging for a signer to be present;

• adjusting the rules of a redeployment procedure for a disabled worker at risk of redundancy (Redcar & Cleveland Primary Care Trust v Londsdale [2013] UKEAT/0090/12/RN); and

• offering suitable alternative work that a disabled employee is capable of performing, without making her undertake a competitive interview (Archibald v Fife Council [2004] UKHL 32).

It is not reasonable to require the employer to adjust or disregard selection criteria that are designed to test the core or intrinsic requirements of the role (Lancaster v TBWA Manchester [2011] UKEAT/0460/10), or to offer a role to a disabled employee who cannot meet those core requirements, even with reasonable adjustments such as training (Wade v Sheffield Hallam [2013] UKEAT/0194/12/1504, McCarthy v Jaguar Cars Limited UKEAT/0320/13/SM).

There is no obligation to red-circle (i.e. protect) a disabled employee’s terms and conditions on a redeployment (British Gas Services v McCaull [2001] IRLR 60).

There is no obligation to dismiss non-disabled employees to make way for a disabled employee whose job has been made redundant.

It can be a reasonable adjustment to prioritise disabled employees over non-disabled employees in relation to redeployment opportunities, even if the disabled employee is not at risk of redundancy (Kent County Council v Mingo [2000] IRLR 90). When deciding whether an adjustment is reasonable, it is generally irrelevant that it means that non-disabled workers lose out.

In Leeds Teaching Hospital NHS Trust v Foster [2011] UKEAT/2011/0052, it was a reasonable adjustment to place a disabled employee who was off sick with stress on the redeployment register for a job elsewhere in an NHS Trust.

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), although there can be exceptions. For example, in a case involving an ongoing reorganisation in which the employer had a lot of leeway when it came to designing jobs in the new structure, it was found to be a reasonable adjustment to create a new job for a long-standing disabled employee (Southampton City College v Randall [2006] IRLR 18).