Lancaster v TBWA Manchester

In deciding whether a proposed reasonable adjustment is required, an employment tribunal must have regard to the extent to which it would prevent the substantial disadvantage caused by the provision, criterion or practice. An adjustment which would have no effect on the redundancy outcome is not reasonable. The assessment is fact-sensitive; a claimant need not prove that an adjustment would remove the disadvantage, but a mere chance of achieving that result does not necessarily make it reasonable.

Where dismissal is procedurally unfair, a Polkey assessment must address suitable alternative employment if the tribunal has found inadequate efforts to identify it. A compensatory award cannot be limited to a short period without determining whether alternative employment would have been offered and accepted under Employment Rights Act 1996, section 123.

The appellant, a disabled 50-year-old Senior Art Director, was dismissed for redundancy after scoring lowest in a pool of three. He alleged failure to make reasonable adjustments to redundancy-selection criteria and age discrimination. The Employment Tribunal dismissed those claims, but found the dismissal procedurally unfair because consultation was inadequate, efforts to find alternative work were limited, and the appeal process was deficient.

The Tribunal nevertheless limited compensation to four weeks' further employment, applying Polkey. The appellant appealed the dismissal of the discrimination claims and the four-week limit on compensation. The central issues were whether the proposed adjustments were reasonable and whether the Tribunal had adequately assessed the prospect of alternative employment when making its compensatory award.

1. Appeal allowed in part. The appeal against the dismissal of the disability and age discrimination claims was dismissed. The appeal against the four-week limit on the compensatory award for unfair dismissal was allowed and remitted.

2. Under Disability Discrimination Act 1995, sections 4A and 18B(1)(a), the extent to which an adjustment would prevent the relevant disadvantage is a material consideration in deciding whether it is reasonable. The claimant need not prove that an adjustment would remove the disadvantage, but the Tribunal must assess its likely efficacy on the evidence.

3. Removing the three challenged selection criteria would not have altered the appellant's position as the lowest-scoring candidate, even after correcting the Tribunal's arithmetic. The proposed adjustment would therefore have had no effect and was not reasonable.

4. The Tribunal was also entitled to reject the proposed substitution of all selection criteria with purely objective measures. The senior creative role could properly require some subjective criteria. On the evidence, the Tribunal was not satisfied that the proposed substitution could have prevented selection for redundancy.

5. The Tribunal was entitled to reject the age claim. Evidence that the industry was generally ageist, and a workforce profile covering varied roles, did not establish that this appellant's dismissal was on grounds of age. The retained comparators were of a similar age.

6. For the Polkey assessment, the Tribunal could conclude that proper consultation would still have resulted in dismissal from the Senior Art Director post. However, having found limited efforts to seek alternative work, it had to determine whether suitable alternative employment would have been offered and accepted. Its failure to do so made the four-week limitation unsustainable. The case was remitted to the same Tribunal, if practicable, for evidence and reassessment of compensation.

• Employment Appeal Tribunal: Allowed the appeal against the four-week compensatory limit and remitted that issue. Dismissed the appeals concerning disability and age discrimination.
• Employment Tribunal: Judgment entered on 20 July 2010. Dismissed the disability and age discrimination claims, found unfair dismissal, and limited compensation on a Polkey basis to four weeks' further employment.