Disability

Employers are allowed to use attendance as a criterion for selection for redundancy but should normally exclude disability-related absence.

Employers must make reasonable adjustments to selection criteria and selection methods to eliminate disadvantage to disabled employees. Every case will depend on its context but past examples 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 a redeployment procedure for a disabled worker at risk of redundancy (Redcar & Cleveland Primary Care Trust v Lonsdale [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 expect an employer to adjust or disregard selection criteria that are designed to test the core requirements of the role (Lancaster v TBWA Manchester [2011] UKEAT/0460/10), or to offer a role to a disabled employee who cannot meet the core requirements even after 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 for 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 irrelevant that making the adjustment will result in non-disabled colleagues losing out.

There is no general duty to create a new job for the disabled person if that job does not already exist (Tarbuck v Sainsbury Supermarkets Limited [2006] IRLR 664), but there can sometimes be exceptions. For example, in a case involving an ongoing reorganisation in which the employer had plenty of flexibility when designing jobs in the new structure, it was judged to be a reasonable adjustment to create a new job for a long-standing disabled employee (Southampton City College v Randall [2006] IRLR 18).