Redcar and Cleveland Primary Care Trust v Lonsdale UKEAT/0090/12/RN

Subjects: Direct Discrimination – Failure to make reasonable adjustments – Redundancy

C was registered blind. She was made redundant from her role following a managed process whereby she had been precluded from applying for a post at Band 6 in competition with another candidate during Stage 1 of the redundancy process. The ET upheld unfair dismissal and discrimination claims. R appealed.

Facts

C was initially employed in a clinical post as a Senior Occupational Therapist at Band 6. In 2008 she suffered a significant deterioration in her vision and an Occupational Health assessment recommended redeployment. The only suitable alternative was a Band 4 post. In 2010 C was informed that her new position was at risk due to a restructuring exercise at R. At the 1“ stage of the process candidates could apply for posts in their Band or one Band above (but no higher). At the 2”“ stage candidates could compete with their colleagues for a wider range of roles. C's was not allowed to apply for a Band 6 vacancy in the 1st Stage and was later dismissed. After an internal appeal C was allowed to apply for the band 6 role during the 2”°' stage but not the 1“. Unfortunately, the role was filled during the 1“ stage. The matching panel allocating the role concluded informally that C did not meet the essential criteria for the role in any event. C's appeal was dismissed. The ET held that R had not made the reasonable adjustment of permitting C to apply for the Band 6 role at the 1“ stage and that the dismissal was unfair. The ET held that there was not an act of discrimination arising in consequence of disability (5.15 EA 2010).

Held

The EAT (HHJ Peter Clark) dismissed R's appeal and allowed C's cross-appeal against the finding that the dismissal was not contrary to 5.15 EA 2010. The EAT referred to the well-trod criteria in Environment Agency v Rowan [2008] IRLR 20. The PCP alleged to have put C at a disadvantage (R's prohibition on staff applying for posts more than one grade above their current banding) placed C at a substantial disadvantage as she had been redeployed from a band 6 to a band 4 because of her disability. This meant that she was precluded from applying for the band 6 role during the redundancy process. Interestingly, the EAT did not accept that earlier redeployment was “too remote”. Archibald v Fife Council [2004] IRLR 651 provided that sometimes disabled people must be treated more favourably than those who are not disabled. As for the discriminatory dismissal, the EAT held that having found a breach of duty under s 20 EA 2010 the ET was bound to go on to conclude that the dismissal was inextricably linked with the failure to make the adjustment and therefore an act of discrimination. Despite the genuine redundancy there was a significant discriminatory element to the dismissal.

Comment

This is an interesting case for a number of reasons that is sometimes hard to follow. Claimants are frequently unable to convince tribunals to take the sort of bold steps HHJ Clark takes in this case. The leap from disposing with the comparison exercise, to the making of a connection between an historic re- deployment and a redundancy exercise would be a step too far for most tribunals. HHJ Clark's approach to “substantial disadvantage” is also noteworthy. On the evidence there was a chance that C may have got the band 6 role. It was therefore a reasonable adjustment to allow her to apply for it. The likelihood of success was something that could be considered further at the quantum stage.