Labour & European Law Review Weekly Issue 233 01 September 2011
The 1995 Disability Discrimination Act (now the Equality Act) requires employers to make “reasonable adjustments” for disabled employees in certain circumstances. In Lancaster v TBWA Manchester, the Employment Appeal Tribunal (EAT) said that it was not a reasonable adjustment to require the employer to replace subjective redundancy criteria with objective ones.
Mr Lancaster had been a senior art director at the company since 2003, but was told in 2009 that, as a result of the financial crisis, he might be made redundant.
He was placed in a pool of three with the two other senior art directors for selection for redundancy and scored against 16 selection criteria. He scored the lowest and was dismissed in June 2009.
It was accepted that he was a disabled person within the meaning of the DDA because of a panic and social anxiety disorder. He claimed disability discrimination (among other things) arguing that the company had failed to make reasonable adjustments and should have:
- removed three of the 16 criteria altogether (ability as team player; attitude to others; and participating in company activities) because these put him at a disadvantage, or
- replaced all the redundancy selection criteria with more objective criteria, such as attendance, disciplinary or absence record,
The Tribunal dismissed Mr Lancaster’s disability discrimination claim, holding that although the three criteria placed him at a substantial disadvantage in comparison with someone who was not disabled, removing them would not be a reasonable adjustment as he would still have ended up with the lowest score.
As for replacing the criteria as a whole with more “objective” measurements, the Tribunal said that it had no evidence to suggest that would have saved him from being made redundant.
And the EAT agreed, saying that removing the three criteria was not a reasonable adjustment as Tribunals are bound by section 18B(1)(a) of the DDA to have regard in particular to factors which include:
“the extent to which taking the step would prevent the effect in relation to which the duty is imposed.”
As for removing all the original selection criteria and replacing them with more objective ones, the EAT said that the position of senior art director was a creative position at a senior level and, therefore, purely objective criteria might not have been appropriate.
In any event, it was for the Tribunal to decide, on the evidence before it, whether it would have made any difference to the end result. This Tribunal had decided it would not.