Disability 



Employers can use attendance as one of their criterion for selection for redundancy. 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. See, for example, Russell v College of North West London [2014] UKEAT/034/13/MC.



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 past examples include:


• offering extra training where lengthy disability-related absence left an 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 a profoundly deaf employee by calling him into a meeting to announce his impending redundancy without arranging for a signer to be present;



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



• 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 a suitable alternative role without making a disabled employee 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 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 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. See, for example, the new ruling, G4S Cash Solutions (UK) Limited v Powell [2016] UKEAT 0243/15/2608, discussed on page 255. 


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 if that job does not already exist (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-standing disabled employee (Southampton City College v Randall [2006] IRLR 18).