An employee in the case of Dominique v Toll Global Forwarding Ltd who was disabled was placed at a substantial disadvantage by the selection criteria in a redundancy exercise. The employee had previously suffered a stroke which had left him with physical and cognitive impairments. He was selected against three others in a redundancy exercise on criteria which he argued were subjective and did not take into account his restrictions in his arms and legs. He was dismissed as redundant and brought a claim for unfair dismissal and disability discrimination. His claim for disability discrimination was that he suffered direct and indirect discrimination and a failure to make reasonable adjustments both in respect of the choice of criteria and the scoring.
The Tribunal found no evidence of direct discrimination. The Tribunal found that the Claimant had been disadvantaged by the inclusion of two of the criteria and the weighting of the scoring but found justification. It said that there had been no failure to make reasonable adjustments as these would not have changed the outcome.
The EAT held that the Tribunal had erred by focusing on the dismissal as the detriment and that it should have considered the question of detriment or disadvantage more generally. The receipt of lower scores was itself a disadvantage which making reasonable adjustments would have addressed. The EAT went onto say that it was difficult to see as a matter of practice how a disadvantage that could have been prevented by a reasonable adjustment (which has not been made) could in reality be justified.
The case is a useful reminder that employers should consider whether any reasonable adjustments are required in redundancy selection criteria to minimise any disadvantages that the disabled employee may suffer.
24th September 2014