Lancaster v TBWA Manchester UKEAT/0460/10/DA
Subjects: Reasonable Adjustments – Whether Reasonable to Change Selection Criteria for Redundancy
C claimed that, during a redundancy selection exercise, R had failed to make reasonable adjustments and had discriminated against him on grounds of his age. The ET dismissed his complaint and C appealed to the EAT.
C was a senior art director at a marketing and advertising agency. He was 50 years of age and suffered from a panic and social anxiety disorder which amounted to a disability under the DDA 1995. He was dismissed for redundancy. He was not consulted about the selection criteria. Three of the criteria were (a) ability to perform as a team player, (b) influence on performance and attitude of others and (c) actively participating in company activities and improving the organisation’s creative output. C scored lowest in the selection exercise and was made redundant.
The two provisions, criteria or practices which were suggested by C were, either the application of the three selection criteria listed above (1 st PCP), or alternatively the application of all of the selection criteria including the three listed above (2 nd PCP). The ET held that the 1st PCP placed C at a substantial disadvantage because C had an anxiety disorder. The ET then held that it was not a reasonable adjustment to remove those criteria because removing them would have made no difference to the outcome of the assessment. The ET was unable to agree whether the 2 nd PCP placed C at a substantial disadvantage in comparison with non-disabled persons. However the ET held that, in any event, they were unable to say whether adjusting R’s criteria in the manner suggested by C would have left him prevented him being selected for redundancy. C’s claim therefore failed. The EAT held that the extent to which a PCP helped to prevent the disadvantage was a material consideration in determining its reasonableness and that, where there was no prospect of the adjustment proposed achieving its aim, it would not be a reasonable adjustment. Conversely where there was a real prospect of the adjustment achieving the desired effect then it may be reasonable for the employer to take that course. It was not a requirement that the Claimant prove that the adjustment would definitely remove the substantial disadvantage.
Both the ET’s and the EAT’s approach to the 1 st PCP is confusing. On the one hand they say that the 1 st PCP placed C at a substantial disadvantage (apparently because he had an anxiety disorder). On the other hand they say nothing would have removed that disadvantage since C would have scored the lowest in the pool in any event. This appears to require the adjustment to remedy a different but related disadvantage. I suggest that a better approach is set out in Noor v Foreign & Commonwealth Office (see 2010/Q2.p5). The difference between the outcomes in these two cases arises from the way in which the respective Cs described the disadvantage that was caused by the PCP. In relation to the 2 nd PCP the EAT held that the tribunal was also correct to reject the claim based on that PCP if they were not satisfied, on the evidence, that any adjustments would have prevented C being selected for redundancy.