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21 August 2014

Reasonable adjustments for disabled employee at risk of redundancy

The Employment Appeal Tribunal (EAT) has upheld a decision that an employer had failed to make reasonable adjustments for a disabled employee in a redundancy exercise.

The employee in this case, Mr C, was employed by the London Borough of Southwark.  He was informed that his role was redundant and he therefore became eligible for redeployment under Southwark’s policy, giving him three months to find an alternative post.

Mr C was informed that his employment would terminate on 3 August 2011. On 13 May he was signed off sick by his GP for three months due to a sleep paralysis disorder that resulted in depression.  Following an assessment by its occupational health provider, Southwark was advised that Mr C was not fit to attend ‘administrative meetings’.

Mr C’s termination date was postponed and he was asked to indicate whether he was interested in being considered for various alternative posts and when he might be able to attend an interview.  Mr C’s employment was eventually terminated on the grounds that he did not confirm his interest in any of the vacancies or whether he could attend interviews.  His appeal against his dismissal was unsuccessful.

Mr C’s claim for disability discrimination succeeded at the employment tribunal, on the grounds that Southwark had failed to make reasonable adjustments in light of the occupational health report. Since the report stated that he could not attend administrative meetings, the employer should have dispensed with the need for Mr C to attend an interview for the redeployment posts.

The tribunal noted the suggestion made by Mr C’s trade union representative that an interview could have taken place at his home, or that a less formal process could have been adopted by Southwark.  It also pointed to the fact that as he had been an employee for several years, his managers could have assessed his abilities to carry out the posts in question.

Southwark appealed.

Decision

The EAT dismissed the appeal, upholding the tribunal’s finding of disability discrimination for failure to make reasonable adjustments. It confirmed the finding that Mr C had been put at a substantial disadvantage because he could not attend an interview and could not demonstrate that he was qualified for any of the available posts.

Comment

The decision emphasises the duty on employers to be flexible in relation to their usual procedures in order to accommodate the needs of disabled employees.

The EAT emphasised that it is not automatically the case that a disabled employee should be appointed to an alternative role in a redundancy situation; only that they are not put at a disadvantage by an employer’s failure to make reasonable adjustments in the selection process.  Further submissions would be necessary at the remedies hearing in this case in order to ascertain the appropriate level of compensation, since it could not be certain that Mr C would have succeeded in being appointed even had the reasonable adjustments been implemented.

A copy of the EAT judgment is available here.