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Redundancy and duty to make reasonable adjustments

Posted by TonyBrownEmploymentSolicitor on May 20, 2013

The Employment Appeal Tribunal (EAT) has ruled that a disabled worker’s employer failed to make reasonable adjustments to accommodate her disability and the discrimination contributed to her unfair redundancy selection.

The Claimant had worked as a band 6 senior occupational therapist but her deteriorating eyesight meant that she could not continue in any role involving interaction with patients. She was therefore re-deployed to a band 4 administrative role. 

When the employer embarked on a restructuring exercise, the Claimant was informed that she was at risk of redundancy. She was refused permission to apply for a band 6 role on grounds that this was two bands above her current position, and was dismissed on grounds of redundancy.

The employment tribunal ruled that the employer had failed to make reasonable adjustments and that the Claimant’s dismissal had been unfair. However, the tribunal rejected the Claimant’s additional claim that her dismissal was also discriminatory.

Both the employer and the Claimant appealed against aspects of the tribunal’s decision.

Dismissing the employer’s appeal, the EAT ruled that the woman had suffered a substantial disadvantage in that, as a direct result of her visual impairment, she had been re-deployed from a band 6 to a band 4 role. It was that demotion which had precluded her from subsequently applying for the band 6 position when threatened with redundancy. A reasonable adjustment would have been to permit the Claimant to apply for a role that was two bands above her current position.

Allowing the Claimant’s cross appeal against the dismissal of her discrimination claim, the EAT, disagreeing with the tribunal, ruled that the woman’s dismissal was discriminatory, as well as unfair, because her redundancy had been rendered inevitable by the employer’s refusal to allow her to apply for the band 6 post.

Comment

Although the employer wanted to treat all staff equally by not allowing the Claimant to apply for a role outside her pay grade, it overlooked the fact that disabled people are sometimes entitled to be treated more favourably than non-disabled colleagues. This required the employer to allow the Claimant to apply for a role two bands above her current job.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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