Despite the fact an adjustment would have made no difference to the decision taken to dismiss a disabled employee by reason of redundancy, the Employment Appeal Tribunal (EAT) held in Dominique-v-Toll Forwarding Limited that an employer had acted unlawfully when it did not adjust certain redundancy criteria, which had the effect of placing a disabled employee at a substantial disadvantage.
Mr Dominique had been employed since 1979 by the predecessor company purchased by TGF in 2010.
In 2003 Mr Dominique suffered a stroke, which left him with both physical and mental impairments affecting his mobility and cognitive skills.
Shortly after purchasing the company, TGF began a process of integration, which resulted in a number of redundancies. A decision was taken to remove one role from the team in which Mr Dominique was a member. Mr Dominique was informed of this on 18 January 2011.
Prior to a meeting on 31 January 2011 Mr Dominique, along with other affected staff, was emailed with proposed selection criteria for the redundancy process. This was discussed at the meeting and the process explained to the employees. The criteria against which employees were to be assessed was:
- Length of service and absence
- Productivity (including ability to handle allocated and error mistake levels)
- Flexibility and discretionary effort.
The scoring process was to take place in two stages. At the end of the second stage Mr Dominique had the lowest score; scoring particularly badly in two categories, which carried heavy weightings, namely: ability to handle allocated and error/mistake level. Mr Dominique was informed of this at a meeting on 15 February 2011, when he was told that he was being selected for redundancy and that his termination date would be 28 February 2011.
Mr Dominique was given, and took up, a right to appeal in which he made a number of criticisms about the process, including a complaint that allowances should have been made for his physical disability, which meant he could not work as quickly as others. His appeal was dismissed and his employment terminated on 28 February 2011. Following this, Mr Dominique brought a claim for disability discrimination (amongst others) in the Employment Tribunal (ET).
TGF accepted that Mr Dominique was physically disabled and the ET ruled in any event that TGF knew, or ought to have known, of Mr Dominique’s cognitive deficit. In particular comment was made of the fact Mr Dominique made frequent errors.
Mr Dominique’s impairment affected both his productivity and error/mistake level. Therefore whilst the ET made findings that the overall selection criteria used, weightings and scores given were fair to the pool as a whole, it found that the inclusion of criteria relating to productivity and accuracy did have the effect of placing Mr Dominique at a substantial disadvantage. TGF knew or ought reasonably to have known about this and as a result the duty to make reasonable adjustments arose.
The ET held that a reasonable adjustment would have been to increase Mr Dominique’s score under these criteria by 1 point (20% uplift). However, since this adjustment would not have prevented the dismissal, the ET held that it would not have been a reasonable adjustment to make and as a result there had been no breach of the Equality Act 2010.
On appeal, the EAT held that there was a failure to make reasonable adjustments and that this had the effect of placing Mr Dominique at a substantial disadvantage. Whilst such an adjustment would not have circumvented the dismissal, Mr Dominique received lower scores in the redundancy selection process than he would have done had the adjustment been made. Whilst the EAT observed that the discriminatory effect of the lower scores was much less than the effect of dismissal, there was still a discriminatory outcome.
The EAT found that the focus of the ET on the avoidance of dismissal was too narrow and the disadvantage suffered by Mr Dominique should have been considered more generally. Mr Dominique was placed at a disadvantage by the lower score he received and it was held that this should have been weighed in the balance against the failure to comply with the duty to make reasonable adjustments. If this could not be justified, the EAT commented that an award for injury to feelings was likely.
What does this mean?
This case demonstrates the requirement on employers to consider all of the possible disadvantages which could be suffered by disabled employees and make reasonable adjustments to remove these. Even when the reasonable adjustment would make no difference to an overall outcome (i.e. the position at the end of a process) this case highlights that nonetheless there may be a duty on the employer to make reasonable adjustments in any event to avoid other (lesser) disadvantage arising/being sustained.
Another case demonstrating the proactive approach employers must take to reasonable adjustments was covered in our recent blog post.
Click one of our articles to continue reading about duty to make reasonable adjustments, dependants leave and disappearing employees and the latest TUPE update. Binding communications about pay, when employees strike, the on-call conundrum, the future of Employment Tribunal fees and finally In a nutshell.