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Redundancy - adjustments to selection criteria for disabled employees

Employment Law & HR
BG Purple

It is a fundamental principle of a fair redundancy process that clear and measureable criteria are put in place when deciding who from a pool of potentially redundant employees should be selected.


It also goes without saying that the criteria used must not themselves be directly or indirectly discriminatory. For disabled employees, a further consideration that might arise is the need to make adjustments to the criteria used so as not to place a disabled employee at a disadvantage. This latter point was the issue recently tackled by the EAT in the case of Lancaster v TBWA Manchester.

In this case the employee suffered from a panic and anxiety disorder which fell within the definition of a disability. He, alongside three colleagues, was placed under threat of redundancy and scored against selection criteria. The Claimant scored lowest by a considerable margin and was dismissed as redundant. He raised a tribunal application on a number of grounds, one of which was that the selection criteria used were too subjective, relying primarily on communications skills and placed him at a disadvantage due to his disability (which meant he had poor communication skills). The Claimant contended that only wholly objective criteria should have been used such as attendance and disciplinary record.

The Claimant (while succeeding in other arguments) failed in respect of the above argument. Employers need only consider 'reasonable' adjustments. In the above case, there was no evidence that removing the offending criteria would have resulted in a different outcome particularly given the fact that the Claimant was considerably behind his colleagues in all the scoring carried out. Further, the tribunal found that the nature of the role (senior art director) entitled the employer to look to more subjective criteria encompassing the candidates' creativity.


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