Redundancy selection: employer’s approach to disability-related absences

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In DLA Piper's latest case report, the Employment Appeal Tribunal (EAT) tackled the thorny issue of applying sickness absence criteria in redundancy selection to disabled employees at risk of redundancy. The EAT ruled that a college's redundancy selection method was a rational, non-discriminatory approach available to a reasonable employer and upheld the college's appeal against the tribunal's finding of unfair dismissal. Russell v College of North West London EAT/0314/13

Facts

Ms Russell was a lecturer at the respondent college. She suffered from Ménière's syndrome, which is a condition that rendered her disabled. In October 2011, she was placed at risk of redundancy. The redundancy selection pool was composed of Ms Russell and five other employees, two of whom were also disabled. The redundancy selection criteria included employees' sickness absence record. Ms Russell was selected for redundancy. Following her dismissal, she brought claims of unfair dismissal and disability discrimination. The tribunal upheld her claim of unfair dismissal, on the basis that the formula used for calculating sickness absence was incorrect and wrongly applied. Her claims of disability discrimination were dismissed.

Appeal to the EAT

Ms Russell appealed to the EAT against the dismissal of her disability discrimination claims. The college cross-appealed the finding of unfair dismissal. At the heart of the appeal was that, in Ms Russell's view, the scoring system adopted led to direct and indirect disability discrimination, and discrimi