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Failing to discount disability related periods of sickness for the purpose of redundancy scoring was disability discrimination.

28 July 2010 #Employment

Most employers adopt standard redundancy scoring criteria which include objective criteria such as levels of sickness absence. Again, most employers know that to avoid discriminating against disabled employees any periods of sickness that relate to a disability should be discounted from the disabled employee`s score. This would be a reasonable adjustment for employers to make.

However even when employers are aware of this, and attempt to apply criteria reasonably and fairly towards disabled employees, they can still fall foul of the law, as happened in the case of Bonfield v West Yorkshire Probation Board ET/1808833/09.

In that case, an employee suffered from diabetes and had been absent from work on two occasions directly related to this impairment. Her employer did not include this absence when calculating the employee`s score. However she had been absent from work on a number of other occasions with various seemingly unrelated illnesses and as such scored low in the absence criteria. The employee was then selected for redundancy.

At a meeting to discuss her scores the employee stated that her diabetes made it more likely that she would suffer from other illnesses, and therefore her more general impairments were related to her diabetes and should also have been discounted. She pointed to Occupational Health reports which corroborated this. The employer ignored this evidence and upheld her redundancy on appeal.

At the Tribunal the employer tried to argue that as it was impossible to calculate how much her diabetes affected her other illnesses it was also impossible for them to work out how much absence to discount. The Tribunal said that the employer had to at least try to work out how much to discount, by talking to the employee and seeking medical advice, and the fact they had just ignored the issue was a failure to make a reasonable adjustment and that therefore they had discriminated against her by reason of her disability.

For more information on disability discrimination, reasonable adjustments and applying fair redundancy criteria, see the extensive range of documents Buddy has in its HR Resources section.
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