Avoiding disability discrimination during redundancies

Employers should make reasonable adjustments and consider disabilities when carrying out job cuts, as Paul Kelly explains in light of a recent tribunal ruling

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Businesses in the unfortunate position of having to make employees redundant must adhere to fair and equal procedures to avoid discriminating against disabled employees. 

The Equality Act 2010 safeguards individuals meeting the legal definition of disability from disability discrimination. Section 6 states: “A person (P) has a disability if – (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

Implementing reasonable adjustments

Employers are legally obligated to make reasonable workplace adjustments for any employee with a disability. Reasonable adjustments may include adapting computer preferences or modifying working hours to ensure an employee can perform their job at a level comparable to an employee without a disability.

During the redundancy process, employers should also make sure that adjustments are made for any employee with a disability who is being considered for redundancy. This may include excluding disability-related absences from consideration and arranging alternative methods for consultation meetings if necessary.

Executing considerations in practice

The recent employment tribunal case of Jandu v Marks and Spencer – involving Mrs Jandu’s redundancy from national retailer Marks & Spencer – highlighted the necessity for employers to consider employees’ disabilities during the redundancy consultation process. 

Having made her employer aware of her historic diagnosis of dyslexia at the start of her employment, Jandu received reasonable adjustments from Marks & Spencer including colour checking important emails before they were sent to highlight errors, and colour coding emails to make her aware of key information, which effectively aided her in managing her disability at work. 

Following a redundancy announcement in 2020, Jandu participated in the consultation process and, based on a scoring matrix implemented by her employer, was selected for redundancy because she received low scores in the areas of leadership and communication. Employer feedback emphasised issues with the quality of her emails, describing them as “rushed”, “not thought through” and often containing inaccuracies.

Jandu raised her dyslexia as a contributing factor during her appeal against the employer’s decision to dismiss her. Jandu’s appeal was unsuccessful so she filed a claim in the employment tribunal for unfair dismissal and disability discrimination, arguing that there had been a failure to make reasonable adjustments.

The claim was successful. The employment tribunal recognised that Jandu’s condition was a disability and found that her dismissal was unfair as a result of a subjective selection criteria, lacking objectivity. It determined that the employer failed to make reasonable adjustments in the redundancy process, leading to discrimination based on consequences of her disability.

Implications of neglecting considerations

Businesses must prioritise considering employees’ disabilities during redundancies as failure to do so can have significant cost consequences. Jandu was awarded £54,000 in compensation by the employment tribunal because of insufficient considerations for her disability during the redundancy process.

This case highlights the importance of fair and objective criteria in redundancy procedures, particularly when employees have disabilities requiring measures to mitigate disadvantages and ensure a non-discriminatory selection matrix. 

Paul Kelly is head of employment at Blacks Solicitors