Coronavirus: Employer’s resource centre — live guidance available here

Disability HR in redundancy consultation

Employment Law & HR
BG Purple

When faced with a disabled employee, what kinds of adjustments are employers required to make to the redundancy process and is the employer required to give priority in terms of alternative work to the disabled employee?

The EAT recently considered these issues, confirming that an employer is not obliged to give priority to the employee in terms of alternative work but that the employer must consider adjustments to the selection process otherwise they will likely fail in their duty to make reasonable adjustments. 

In London Borough of Southwark v Charles the EAT upheld the decision of the employment tribunal that an employer failed to make reasonable adjustments for a disabled employee in a redundancy exercise. The employee's disability meant that he was unable to attend administrative meetings, which the tribunal held included interviews for alternative roles. The tribunal found that the employer failed to consider alternative ways of assessing his suitability for alternative roles into which he might have been redeployed as an alternative to redundancy.  

However, the EAT went on to note that the requirement to adjust attending an interview for a role does not lead automatically to the conclusion that the employee would have been appointed. That would be the subject of evidence and submissions at the remedy hearing. In this case, the employee argued that he could have been interviewed at home, rather than the workplace, or could have provided information in advance as part of a less formal process. He had been with the employer for several years, so his managers could have been consulted about his suitability especially for a less senior post. 

This case highlights that the requirement to attend an interview has the potential to disadvantage a disabled employee, but also outlines how an employer can make reasonable adjustments to avoid the disadvantage occurring. The EAT made it clear that appointment to the post is not automatically required. It will be for the employer to consider how it can assess the disabled employee alongside other candidates. In practice employers need to looking at any selection process from the outset to ensure there are no parts of the process which hinder a disabled employee.

© Copyright of Law At Work 2021 Law At Work is part of Marlowe plc’s employee relations division