Disability 





Employers can use attendance to select for redundancy, but it should be one of a range of criterion to avoid discrimination and should not be decisive. Reps should argue for all disability-related absence to be excluded. However, including some disability-related absence will not necessarily invalidate a selection process provided reasonable adjustments have been made. 





Reasonable adjustments must be made to selection criteria and selection methods to eliminate disadvantage to disabled employees. Every case depends on its own facts but some examples include:


• offering extra training where lengthy disability-related absence left an employee de-skilled and at higher 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, an 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 types of mental health condition);



• ignoring a disciplinary warning that is linked to disability (see section 15, EA 10, Chapter 7, page 256); 



• adjusting a redeployment procedure (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 making them attend a competitive interview while recovering from throat cancer (Waddingham v NHS Business Services Authority (ET/1804896/2013); 



• organising a redeployment interview at home, when depression prevented the employee attending a formal interview (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 making reasonable adjustments (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 following a redeployment (British Gas Services v McCaull [2001] IRLR 60). However, 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. 




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 the same adjustment is not available to non-disabled colleagues.





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 an ongoing reorganisation where the employer had plenty of flexibility when designing jobs, it was a reasonable adjustment to create a new job for a long-serving disabled employee (Southampton City College v Randall [2006] IRLR 18).