Legal questions and answers: Redundancy and employees with disabilities
Redundancies are rarely straightforward and, if it involves a disabled employee, your standard procedures may need to be adjusted. Akshay Choudhry, an associate from Burges Salmon, looks at the issues.
How do I know if an employee is disabled and why does this matter?
Employers of disabled employees are obliged to make reasonable adjustments to a redundancy process, to ensure that those employees are not put at a disadvantage because of their disability.
The test for determining disability (and, therefore, whether or not reasonable adjustments may need to be made) is a legal one. To be protected, the employee needs to have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out day-to-day activities. While it is ultimately for the employment tribunal - rather than doctors or occupational health - to decide if the employee satisfies this test, an employee with a medical condition that has or is likely to last more than 12 months will probably be protected.
Even where an individual has a medical condition that does not amount to a disability, it may still be appropriate to adjust the redundancy process to make any dismissal fair and to ensure that you retain the best performers.
What if an employee has a medical condition that they haven't told me about?
If you do not know that an employee is disabled, there is no obligation to make reasonable adjustments. However, be warned - even if the employee has not told you about a condition, you may still have to make reasonable adjustments if you could reasonably have known that the employee was disabled. Carefully consider the available information to identify if you have employees who may potentially be disabled, review absence records and speak to line managers and your occupational health provider to identify possible issues.
Consider asking employees to self-declare any medical conditions at the outset of the redundancy process. Although some employers may be wary of spurious claims, being forewarned before conducting assessments and consultation meetings may prevent complications later on.
What adjustments do I need to make to a redundancy process?
What amounts to a reasonable adjustment will depend on the nature of the disability. However, it may include providing documents in alternative formats, such as braille or large text, or making alternative arrangements for consultation meetings, such as holding them at the employee's home. Also, you may need to advise employees that if they wish to apply for any alternative roles, reasonable adjustments will be considered for those roles or the application process.
What about adjustments to the selection process?
Adjustments may also need to be made to your selection process. For example, any disability-related absences should be disregarded if assessing sickness absence. Also, scores in respect of an employee's behaviour may need to be adjusted if that behaviour is caused by a disability (for example, poor team working may be attributable to a mental impairment). Similarly, the assessment of technical abilities may need to be adjusted if the employee cannot exhibit a technical skill because of a disability.
If a score needs to be adjusted, what adjustment should be made?
There are various ways of adjusting scores. What is appropriate will depend on the circumstances. Options include: discounting the criterion in question altogether; giving the employee an average score based on their scores for other criteria; giving the employee an average or other appropriate score based on other employees' score for that criterion; or changing or extending the reference period over which the employee is assessed.
What else should I consider?
In deciding whether to adjust scores, remember your business needs to function effectively post-redundancies. If the adjustment would leave the business with insufficient skills or resource, it is probably not a reasonable adjustment. Just because an employee is disabled, that does not mean they are automatically disadvantaged by an assessment criterion - for example, if assessment of a skill is qualitative and the disability affects output, not quality, then no adjustment may be necessary.
It may be difficult to ascertain whether or not the employee is disadvantaged and, if so, to what extent. Consider obtaining up-to-date medical advice on the condition and its impact on the employee - particularly where you were previously unaware of the condition.
Also, remember that disabled employees will be affected differently depending on the criterion and disability in question - there is no "one-size-fits-all" solution.
Finally, any adjustment you make is likely to have a knock-on affect on other employees, so be wary of making overly generous adjustments that could render the dismissal of a non-disabled employee unfair.
The author: Akshay Choudhry is a senior associate at Burges Salmon.