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
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 discrimination arising from disability.
For the college’s part, it considered that it had been sensitive to the needs of the disabled employees in the redundancy selection pool, and it had consulted with the union regarding an appropriate scoring system. The college had decided to base its redundancy selection matrix on sickness absence, but it had been mindful that using a simplistic formula could lead to discrimination.
The college opted to use the “Bradford Factor”, which is a sickness absence calculation which gives weight to the fact that a high number of short-term absences may in fact be more detrimental to a business than more lengthy, infrequent absences.
The calculation incorporates both the frequency and period of absence. The union agreed with the college that only Bradford Factor scores of more than 600 would be taken into account, on the basis that this was the average score among college staff.
A further issue was how to approach disability-related absences in the redundancy selection process. The union considered that such absences should be left out entirely. The college disagreed, and the union went on to suggest a discount of 75% to these absences.
The college decided to reduce the disability related absences by 50%. Ms Russell argued that the college had incorrectly applied the formula and, if it had been applied correctly, a different employee would have been selected.
The EAT dismissed Ms Russell’s claim of direct discrimination, considering that her dismissal had not been by reason of her disability. She would have had the highest score in the redundancy selection even if all of her disability-related absences had been removed.
Her indirect discrimination claim failed because she failed to show, as required by the Equality Act 2010, that she had suffered a “particular disadvantage” because of her disability. Her claim of discrimination arising from disability was also dismissed because the clear reason for the redundancy selection scoring was to ensure that there was no adverse impact on the disabled employees.
The EAT allowed the cross-appeal. Although Ms Russell had proposed a viable alternative calculation, both options were reasonable and therefore available to her employer. The EAT considered that the employer should not have been penalised for proceeding as it had done, given that the redundancy selection method chosen had been properly explained and fairly implemented.
Implications for employers
Selecting objective scoring criteria in redundancy selection remains a headache for employers facing a redundancy process. This case shows the sensitivity and adjustments required when a redundancy selection pool includes disabled employees.
The approach of the EAT in this case should offer employers some comfort that their actions need not be perfect, or to the satisfaction of all employees at risk. Employers must be able to demonstrate that they used a rational formula, following due consideration of alternative approaches. This will improve an employer’s ability to demonstrate their process fell within the range of responses available to a reasonable employer in their situation.