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Employers have to make adjustments only if they are likely to make a difference

clip_imagedavid_in_macduff002The Employment Appeal Tribunal (EAT) has upheld an employment tribunal's decision that it would not have been a 'reasonable adjustment' for an employer to alter redundancy selection criteria to lessen the emphasis on an employee's communication skills (Lancaster v TBWA Manchester).  Employment lawyer David Christie, partner with Proactive Employment Lawyers, considers the decision.

The most interesting aspect of this case was the EAT's comments about reasonable adjustments under what was then the Disability Discrimination Act 1995 and is now the Equality Act 2010.  The employee in this case was a senior art director with an advertising and marketing agency.  He suffered from panic and social anxiety disorder that amounted to a 'disability' within the meaning of the Disability Discrimination Act 1995.  He was selected for redundancy following the loss of a major contract and brought claims of unfair dismissal, age discrimination and disability discrimination.  For the purposes of this case analysis, it is only the disability discrimination claim which concerns us here. 

The employee's disability discrimination claim was that three of the selection criteria used by his employer placed him at a substantial disadvantage due to his disability.  He argued that his employer was under a duty to make a reasonable adjustment to the selection process by omitting these criteria.  He also argued that his employer should have adopted a more objective set of criteria such as attendance and length of service.

The employment tribunal rejected his disability discrimination claim, saying that neither of his proposed adjustments would or could have prevented him from being selected for his redundancy.  As his proposed adjustments would not have made any difference to the outcome of the redundancy process, they could not be considered reasonable.

On appeal, the EAT agreed with the tribunal's approach, noting that when considering whether an adjustment is 'reasonable', tribunals should take into account the extent to which the proposed adjustment would 'prevent the effect in relation to which the duty is imposed'.  It followed that if the adjustment would not make a difference, it was not a 'reasonable' one for employers to have to make.

Although this case was heard under the Disability Discrimination Act 1995 (which has now been repealed), the principle which it highlights would apply equally to disability discrimination claims made under the Equality Act 2010.

Notes:

1. The employer's obligation to make reasonable adjustments for disabled workers is now set out in s. 20 of the Equality Act 2010.

2. This case will be one of several that we will be covering at our next lunch bite on "Effective Sickness Absence Management", details of which are available here.