Disability and redundancy – how on earth does an employer fairly select?

Released On 5th Dec 2022

Disability and redundancy – how on earth does an employer fairly select?

The case of Jandu v Marks and Spencer has hit the headlines recently, with M&S being ordered to fork out in excess of £50k to a former employee who had been made redundant by the retail giant.

The Claimant, Ms Jandu, suffers from dyslexia, and it was for this reason that she succeeded in her claim in the employment tribunal for unfair dismissal and discrimination, with £20,000 of her compensation being awarded for injury to feelings, for the way the discriminatory treatment left her feeling.

So, if a big player like M&S can get it so wrong, how on earth can smaller employers ensure that they select individuals for redundancy in a fair way?

Making redundancies can be complex and the process can be a legal minefield. Throw in to the mix an employee who has a protected characteristic and it’s hard to know if you’re doing right for doing wrong.

In Ms Jandu’s case, the individuals making the decision in the redundancy process wrongly scored her down on areas of her performance that were linked to her dyslexia. The employer had also failed to consistently follow the reasonable adjustments Ms Jandu had requested (such as highlighting the important part of lengthy emails for her), meaning that she wasn’t given a fair chance to improve her performance which, had this been the case, might have increased her scores in the redundancy process. It is noteworthy in this case that had Ms Jandu been awarded one point more than she received during the process, she would not have been selected for redundancy.

Thus, it is not just the redundancy process itself that can cause problems. Employers should ensure that their decisions are justified and can be backed up.

Performance issues ought to be addressed at the time and, where an individual’s performance is found to be impacted because of a disability, reasonable adjustments need to be considered, agreed and, importantly, carried out. This will likely also mean ensuring that line managers are made aware of the adjustments required, and receive appropriate guidance and training. Note of course that the obligation only goes as far as making reasonable adjustments – an employer isn’t expected to jump through hoops!

Of course, nothing can eliminate entirely the risk of selection criteria or scoring being challenged by an employee; however, employers can mitigate this as best as they can by having a robust process in place and setting out clear reasons for the scores they have given. Better still if they can rely on hard evidence, such as previous appraisal scores, and by showing that the employee has been properly supported with any training requirements or reasonable adjustments.

In some cases, a reasonable adjustment might be to adjust the score given in the selection process for a particular area. However, the key here is to ensure that the disadvantage to the disabled employee is removed; but not to the extent that they are afforded an advantage over their peers (Hilaire v Luton Borough Council).

If you need help with a redundancy matter, or with making reasonable adjustments for an employee with a disability, please get in touch with one of the team.