Redcar And Cleveland Primary Care Trust v Lonsdale

Where disability has caused an employee to occupy a lower-graded role, a redundancy redeployment rule that prevents an application for a role at the employee’s former grade may create a substantial disadvantage. A non-disabled comparator is required only where appropriate. A reasonable adjustment may require an exception to an otherwise equal redeployment framework so that the disabled employee may compete for that role.

The employee need not prove that the adjustment would have secured the post. A real prospect that it would have removed the disadvantage is sufficient. Where dismissal by redundancy was inevitable because the adjustment was not made, the dismissal is discriminatory under Equality Act 2010 section 39(2)(c), even if redundancy was its principal reason for unfair-dismissal purposes.

The claimant, a senior occupational therapist, became visually impaired and was redeployed from a band 6 clinical role to a band 4 non-clinical role. During a later genuine restructuring exercise, the employer’s framework prevented her at the first stage from applying for a band 6 Patient and Staff Safety role. It allowed applications only up to one grade above an employee’s current role.

An Employment Tribunal held that the employer should reasonably have allowed her to compete for the band 6 role. It found the ensuing redundancy dismissal unfair, but held that dismissal was not itself discriminatory. The employer appealed the reasonable-adjustment and unfair-dismissal findings. The claimant cross-appealed the finding on discriminatory dismissal.

1. The employer’s appeal was dismissed and the claimant’s cross-appeal was allowed. The Employment Tribunal was entitled to find a failure to make a reasonable adjustment under section 20(3) of the Equality Act 2010.

2. The relevant PCP was the framework rule preventing an employee at risk of redundancy from applying at stage 1 for a post more than one grade above her current grade. A like-for-like non-disabled comparator was not appropriate. The claimant’s substantial disadvantage arose because her visual disability had caused her earlier redeployment from band 6 to band 4. But for that disability, she would have remained eligible to compete for the band 6 Safety role.

3. Permitting her to compete was a reasonable adjustment. The employer’s wish to apply its framework equally did not answer its duty, since disabled people may need more favourable treatment. The Tribunal did not have to find that the claimant would have obtained the role. It was enough that there was a real prospect that the adjustment would remove the disadvantage. Any loss of that chance fell for assessment at the remedy stage.

4. The Employment Tribunal should also have found the dismissal discriminatory. Its failure to permit the application made dismissal by redundancy inevitable. That failure was inextricably linked to the dismissal and constituted discrimination contrary to section 39(2)(c) of the Equality Act 2010. Redundancy being the principal reason for dismissal did not exclude a discriminatory element that was a significant factor.

5. The redundancy dismissal remained unfair. The case was remitted to the same Employment Tribunal to assess compensation for disability discrimination, including discriminatory dismissal, and unfair dismissal, without double recovery.

• Employment Appeal Tribunal: The employer’s appeal against findings of failure to make reasonable adjustments and unfair dismissal was dismissed. The claimant’s cross-appeal on discriminatory dismissal was allowed.
• Employment Tribunal: The Tribunal, sitting at North Shields, held that the employer had failed to make a reasonable adjustment and had unfairly dismissed the claimant by reason of redundancy. It rejected the claim that the dismissal was discriminatory.