Russell v College Of North West London

In redundancy selection, an Employment Tribunal must decide whether the employer adopted and fairly applied a system within the range open to a reasonable employer. It must not substitute its own preferred method merely because an alternative is rational or mathematically simpler.

A direct disability discrimination claim fails where dismissal is caused by non-disability-related absence rather than disability. Under Equality Act 2010, section 15 requires a causal connection before justification arises. Section 19(2) sets cumulative and sequential conditions; failure to establish group disadvantage ends the claim without considering justification.

A Polkey reduction may be adequately reasoned where the tribunal identifies findings demonstrating a high prospect of a fair capability dismissal.

The claimant, a lecturer disabled by Meniere’s Disease, was selected from a redundancy pool using sickness-absence criteria and a Bradford score. The College discounted disability-related absence by 50%, using a calculation that left the claimant with the highest adjusted score.

The Employment Tribunal dismissed her disability discrimination claims but held the dismissal unfair. It preferred the claimant’s alternative method of applying the 50% discount. At remedy, it reduced compensation by 80% because there was a high prospect of a fair capability dismissal.

The claimant appealed the dismissal of claims for direct, discrimination arising from disability, and indirect discrimination, and challenged the Polkey reduction. The College cross-appealed the unfair-dismissal finding. The central issue was whether the Tribunal had impermissibly substituted its preferred scoring method for one rationally open to the employer.

1. The claimant’s liability and remedy appeals were dismissed. The College’s cross-appeal was allowed, and the unfair-dismissal claim was dismissed.

2. On direct discrimination, the Tribunal had asked the correct question under sections 13 and 23 of the Equality Act 2010. The 600-point threshold applied equally to disabled and non-disabled employees. On the findings, the claimant was selected because her non-disability-related absence score exceeded that of the proposed comparator. Even excluding all disability-related absence, she would have scored more highly than every non-disabled candidate. The Tribunal was not obliged to revisit her concession that those absences were non-disability-related.

3. For discrimination arising from disability under section 15(1), the requisite causal connection was not established. The College’s calculation method was intended to avoid penalising employees with greater disability-related absence. The claimant was selected over the other disabled candidate because she had more non-disability-related absence. Justification therefore did not arise.

4. Section 19(2) contains sequential and cumulative requirements. The Tribunal found that the claimant had not shown that persons with her disability suffered the required particular group disadvantage. That unchallenged finding under section 19(2)(b) disposed of the indirect-discrimination claim, so it was unnecessary to decide justification under section 19(2)(d).

5. The Tribunal erred on unfair dismissal by preferring its own calculation of the 50% discount. Applying the approach in British Aerospace plc v Green & Ors [1995] IRLR 433, its task was whether a reasonable employer might have adopted the College’s method, not which method was correct. Both methods were rationally open. The College had explained its reasons and consistently applied its method to all disabled candidates. This was an exceptional case in which remission was pointless because only one conclusion was open.

6. Although unnecessary to the result, the 80% Polkey reduction was adequately reasoned. The Tribunal identified several findings showing a high prospect of capability dismissal, and its conclusion was neither inadequately reasoned nor perverse.

• Employment Appeal Tribunal: the claimant’s appeals concerning disability discrimination and remedy were dismissed. The College’s cross-appeal succeeded. The Employment Tribunal’s finding of unfair dismissal was set aside and the unfair-dismissal claim was dismissed.
• Employment Tribunal: dismissed the disability discrimination claims, upheld unfair dismissal, and awarded compensation after an 80% Polkey reduction.