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First Published Tuesday, 24 March 2009

Kate Hilpern 

Making redundancies is never desirable or easy, but if those affected have a disability the legal pitfalls for HR are even greater. We look at how to approach the issue fairly.

Such is the difficulty of finding a job when you’re disabled that many who are made redundant in the current climate are likely to waste no time in finding out if they have a legal case against their employer.

“At the moment it’s hard enough finding work if you’re not disabled, let alone if you are,” says Richard Martin, partner at law firm Speechly Bircham. He believes there are other reasons for the expected rise in such cases over the coming months.

“The redundancy packages on offer are becoming less generous, with less incentive to sign away your rights,” Martin explains.

“Also, interestingly, we’re finding that many people being made redundant from stressful sectors, especially in the City, are finding themselves unexpectedly relieved. They have no intention of returning to the sector they left, and feel even more confident about taking legal action.”

Selection criteria

One in eight UK workers has a disability, according to the Employers’ Forum on Disability (EFD), although many do not declare this to their employers. The problem for employers is that if HR slips up, even inadvertently, in the eyes of the law on issues such as redundancy selection criteria or redeployment opportunities, they may find themselves paying uncapped damages, not to mention suffering a massive loss of valuable management time.

“If, for example, attendance is used as part of the selection criteria, any periods of absence taken into consideration that are connected with a disability may amount to disability discrimination,” says David Southern, partner and head of employment law at Marsden Rawsthorn solicitors.

The result for employers may be a double whammy: a finding that a dismissal is unfair plus a finding of unlawful discrimination under the Disability Discrimination Act 1995 (DDA). The compensation for the latter is unlimited.

Southern cites the 2004 case of Travis v Electronic Data Systems where the Court of Appeal found that EDS had dismissed Travis unfairly. Travis, who suffers from schizophrenia, needed security clearance because of his involvement in work for the Ministry of Defence. He was absent due to his illness, and by the time he returned, his security clearance had lapsed. It was only partially reinstated, which prevented him from returning to his employer’s defence department. He was made redundant following a restructuring.

The tribunal held that the restructuring amounted to ‘arrangements’ under the DDA, which placed Travis at a disadvantage compared with other staff. By not retraining him or helping him to gain full security clearance, his employer had not taken ‘reasonable steps’ to prevent the disadvantage.

“The tribunal awarded damages to Travis in excess of £547,000, which represented half the salary and benefits he would have earned up to his retirement at 65,” says Southern.

Martin points to another problem area of redundancy selection criteria: “I recently dealt with a man with Asperger’s Syndrome. One of the selection criteria used, which contributed to his redundancy, was leadership. He scored low because he was in an IT role in a team of one, where he didn’t have to interact with anyone – but he’d long before had a discussion with his manager in which it was agreed that leadership was not and would never be part of his job,” he says.

“The lesson for HR is to think about the individual circumstances of anyone with a disability, rather than having a blinkered approach to selection criteria. It’s not only the law that should encourage them – organisations are in danger of losing valuable people and skills if they get rid of the wrong people.”

Then there’s the issue of morale. “Once you make redundancies, you are left with a lot of jittery people,” explains Bela Gore, head of legal affairs at the EFD.

“The more transparent the employer is in terms of showing they have acted fairly to everyone, the better the morale will be.”

Gore adds that an employer’s attitude to redeployment in times of redundancy is another sticky area. The law clearly states that employers who are thinking about making an employee redundant must consider whether they could be redeployed to another job within the organisation.

“But what can be missed with disabled people is the duty under the DDA to make reasonable adjustments,” she adds.

“If a disabled person can prove there was a job available that could have been made suitable by reasonable adjustments, such as flexible working, they could have a case.”

There are so many ways in which a job can be made suitable for a disabled person, insists Clare Smith, director of HR at Leonard Cheshire Disability.

“Often, the job could be done from home, or some of the tasks that a disabled person couldn’t manage could be passed onto another person,” she says.

“Specialist technology can also help. All too often, the tendency is for HR to think the post has gone and there’s nothing else that looks suitable, without an in-depth assessment of the individual and of other vacancies.”

Understanding a person’s abilities

Russell Brown, partner at Glaisyers solicitors, adds: “It is not unusual for employees to be absent on long-term ill-health, with new managers being made responsible for scoring their performance when they have little or no knowledge of their abilities.”

He cites the example of Lofthouse v Imerys Minerals Ltd, in which Lofthouse, who had severe learning disabilities, had been employed by the firm for 40 years. Following the appointment of a new plant manager, a reorganisation exercise was undertaken, requiring all staff to become multi-skilled. The employer decided it would be pointless attempting to identify a role for Lofthouse and made him redundant.

The tribunal ruled that Lofthouse had suffered disability discrimination on the grounds that the employer had imposed new terms that they incorrectly presumed Lofthouse would be unable to comply with. Crucially, there had been no investigation into his skills and no adjustments were considered.

The Archibald v Fife Council case provides a further caution. A road sweeper who was redeployed was asked to compete with outsiders for the 100 jobs she applied for (she got none of them). The House of Lords stated that it’s not enough to simply alert an employee about internal vacancies for which they can apply; they should not be required to take part in competitive interviews for vacant posts.

Full consultation

Consultation is another area where employers can fall foul of the law, says Gore. “It’s all very well sending out letters and holding meetings, but HR needs to make sure these are fully accessible to disabled people – for example, using alternative formats and not forgetting those on long-term sick leave.

And what about those people that don’t declare their disability? “If people don’t tell you about it, you can’t be expected to deal with the issue,” reassures Gore.

“[However] declaring it does not mean turning up and shouting about it, and HR should bear that in mind. Things like repeated sickness absence should act as a clue.”

Jock Chalmers, pathway manager at the UK Council for Access and Equality, agrees. “If someone is having a lot of time off sick over a long period, employers should be asking questions to explore underlying reasons. Equally, if someone’s performance drops off, it’s just the kind of thing that could indicate their health is suffering.”

There’s no doubt that disability has been climbing impressively high on the HR agenda, says Sheila Gunn, head of employment law at Shepherd and Wedderburn.

“That said, I am getting fairly alarmed to see some of the appeals against redundancy from disabled people,” she adds.

“HR professionals need to remember that even if their defence is trying to survive and balance the books in tough times, the law says there is no excuse.”

All the HR directors approached for this article declined to comment.

Source:  http://www.personneltoday.com/articles/2009/03/23/49973/redundancy-and-disability.html




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