Labour & European Law Review Weekly Issue 339 02 October 2013
Under the Equality Act, employers have to make an adjustment for a disabled worker if a provision, criterion or practice (PCP) puts them at a substantial disadvantage compared with someone who is not disabled. In Redcar and Cleveland Primary Care Trust v Lonsdale, the Employment Appeal Tribunal (EAT) held that, when making an adjustment, employers sometimes have to treat disabled workers more favourably than those who are not disabled.
Ms Lonsdale started work for the Trust in January 2008 in a band 6 post. Later that year, her eyesight deteriorated and she was registered blind. Following an assessment by Occupational Health, which found she could not continue her job, she was redeployed into a band 4 post in February 2009.
When the Trust underwent a restructuring exercise in the summer of 2010, she was told that her grade 4 post was at risk of redundancy. At stage one of the Trust’s redeployment policy Ms Lonsdale was allowed to apply for up to five jobs at her present grade or one grade higher without going through a competitive interview. At stage two she could apply for any post, in competition with other colleagues.
At stage one, she asked if she could apply for a band 6 post, but her employer refused, saying that she could apply at stage two if no one else was slotted into the job. However, it was filled at stage one by a disabled colleague.
Ms Lonsdale brought claims for disability discrimination including a failure to make a reasonable adjustment because the Trust had not allowed her to apply at stage one for the grade 6 role, and unfair dismissal.
The tribunal held that the relevant PCP was the policy of not letting staff at risk of redundancy to apply for posts more than one grade above their current banding. By not allowing Ms Lonsdale to compete with the other candidate at stage one, it decided that the Trust had failed to make a reasonable adjustment. The tribunal found that her dismissal was unfair but did not amount to discrimination arising from her disability.
The Trust appealed, arguing that the tribunal had not identified a non-disabled comparator and had failed to show how the PCP put Ms Lonsdale at risk. Ms Lonsdale cross-appealed against the finding that the dismissal was not discriminatory.
The EAT dismissed the Trust’s appeal and upheld Ms Lonsdale’s cross-appeal. When considering a breach of the duty to make reasonable adjustments, the EAT applied the test in Environment Agency v Rowan holding that it was not appropriate in this case to make a “like for like” comparison with a non disabled person.
Ms Lonsdale had suffered a substantial disadvantage when she was redeployed from a band 6 to a band 4 post, as a direct result of her visual impairment. That, in turn, was the reason she was precluded from applying for the band 6 role at stage one under the HR policy. As such, it would have been a reasonable adjustment to make an exception under the policy and allowed her to compete for the band 6 post.
In terms of dismissal, the EAT held that having found a breach of the duty to make a reasonable adjustment, the tribunal was bound to find that the dismissal was discriminatory. Had Ms Lonsdale not become disabled she would have remained in her original post and, had that been at risk, would have been eligible to compete with the successful candidate for the band 6 role. By failing to make an exception under the policy and allow Ms Lonsdale to apply for the higher grade post at stage one of the process, the Trust had not taken into account that disabled employees can sometimes be treated more favourably than those who are not disabled.
The EAT remitted the case to the same tribunal to assess how much compensation Ms Lonsdale should receive, including the loss of the chance of obtaining the band 6 post.
This case is a useful reminder for employers of the extent of the duty to make reasonable adjustments in a redundancy selection process where disabled employees are at risk.