Disability 




Employers can use attendance as one of a range of criterion for redundancy selection. Reps should argue for all disability-related absence to be excluded. However, including some disability-related absence will not necessarily make the selection process unlawful, as long as reasonable adjustments have been made. 




Employers must make reasonable adjustments to selection criteria and selection methods to eliminate disadvantage to disabled employees. Every case will depend on its own facts but some examples include:


• offering extra training where lengthy disability-related absence left an employee de-skilled and 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 a profoundly deaf employee by calling him into a meeting to announce his impending redundancy without organising a signer;




• reducing or eliminating disability-related absence when scoring attendance (see Russell v College of North West London [2014] UKEAT/0314/13/MC);


• adjusting the testing method (for example, avoiding a multiple choice testing format for an employee with Aspergers' Syndrome (Government Legal Services v Brookes [2017] UKEAT/0302/16/RN);


• adjusting scores to take account of disability (for example, when scoring the ability to engage in team work, it might be reasonable to adjust the score of someone with some kinds of mental health condition);


• ignoring a disciplinary warning linked to disability; 


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


• assessing a disabled employee's suitability for redeployment by reviewing their past appraisals, instead of requiring them to attend a competitive interview when they were recovering from throat cancer (Waddingham v NHS Business Services Authority (ET/1804896/2013); 


• allowing an employee to attend a redeployment interview in a more informal setting, for example at home, after their post was deleted in a restructuring, when depression prevented the employee attending a formal interview at work (London Borough of Southwark v Charles [2014] UKEAT/0008/14/RN). 




It is not reasonable to expect an employer to adjust or disregard selection criteria that 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 those core requirements even after reasonable adjustments such as training (Wade v Sheffield Hallam [2013] UKEAT/0194/12/1504, McCarthy v Jaguar Cars Limited [2013] UKEAT/0320/13/SM). 




In general, there is no obligation to red-circle (in other words, protect) a disabled employee’s terms and conditions on a redeployment (British Gas Services v McCaull [2001] IRLR 60) but everything depends on context. In G4S Cash Solutions (UK) Limited v Powell [2016] UKEAT 0243/15/2608, the EAT said that in some circumstances, pay protection can be a reasonable adjustment. 



There is no obligation to dismiss a non-disabled employee 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, 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 it will result in non-disabled colleagues losing out.




There is no general duty to create a new job for the disabled person (Tarbuck v Sainsbury Supermarkets Limited [2006] IRLR 664), but there can 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 a reasonable adjustment to create a new job for a long-serving disabled employee (Southampton City College v Randall [2006] IRLR 18).