Redundancy scoring can still be unlawful disability discrimination

Potential disability discrimination issues can make it very difficult to design a redundancy selection scoring process.

Potential disability discrimination issues can make it very difficult to design a redundancy selection scoring process. If you want to assess the ability of those at risk to do the job the business requires in the future, do you have to vary the criteria if an individual’s disability may adversely affect their score? In the latest Judgment which looks at this legally and technically complex issue, the Employment Appeal Tribunal in Dominique v Toll Global Forwarding Ltd has confirmed that you must consider very carefully whether to do so. Perhaps most concerning for employers, the EAT has concluded that if you do not reasonably adjust the score, that can be unlawful discrimination even if it would have ultimately made no difference to the outcome. 

The facts

Mr Dominique was employed as part of an accounts team. The headcount in the team needed to be reduced by one. The organisation had a lack of recorded information about the team on which to base selection, so it introduced a scoring process under which those at risk were all scored by managers against a number of criteria which focussed on their ability to do the job. As a result of a stroke, Mr Dominique had impairments which affected his mobility and cognitive skills. This had an adverse impact upon him doing the role in two categories in which he scored badly: ability to handle allocated work; and error/mistake levels. When he was made redundant as a result of scoring the lowest, he claimed disability discrimination. 

The Employment Tribunal which heard the case reached conclusions on all of his claims including those for indirect discrimination, disability-related discrimination, and failure to make reasonable adjustments. How these claims work together and what a Tribunal needs to consider is incredibly complicated but this Tribunal looked carefully at what would have been a reasonable adjustment and whether this organisation was justified in using these criteria applied in this way. In reaching their decision the Tribunal was assisted in their view by one key outcome. They felt that at most it may have been legally required to give Mr Dominique an extra point in each of the areas in which he was disadvantaged, but as he needed two extra marks in each area to reach a score which avoided redundancy, it made no difference. As a result they concluded that his claims failed. However the Employment Appeal Tribunal has said they were wrong to do so. According to the EAT, achieving a lower score is potentially an unlawful detriment even if he would still have been made redundant, so they have sent it back to the Tribunal to reach a Judgment on this basis. 

What does this mean for me?

How to select for redundancy is always a difficult decision and one with which many of you will be familiar. It is entirely appropriate to use criteria which match the needs of the business and ensure that those best able to do the job are retained. However how you take into account the fact that an employee has a disability and what you do with that employee’s scoring, is always very difficult. As this Judgment acknowledges, what you should do is undertake a careful balance as part of the scoring exercise. You do not simply have to keep the disabled employee. However this decision provides little practical help or reassurance for you in how you do it. Indeed it opens up a new potential claim, that is one from a disabled employee appropriately made redundant but with fewer marks than may be they should have had if the scoring was altered to take account of their disability.

Comment

In practice this case reinforces the importance of carefully considering what exactly you do on each occasion when redundancy scoring is to be undertaken. If you considering an employee with a disability you must take into account the specific individual at risk, their condition, and the criteria being considered. Do take advice on each occasion, because there are no easy or blanket answers.

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