Q: We are closing a department and so the whole team of five people who work there is potentially redundant. Having reviewed the business there is a vacancy to which we can redeploy one of these employees. We think that all five could do the available job but one of them is a single mother who is the sole breadwinner for a young family. Another employee has a visual impairment which is likely to make it harder for him to get another job elsewhere. Can we take these factors into consideration when deciding who to redeploy to this vacancy and who to make redundant?
A: This is a difficult situation, but you must make decisions about who to make redundant based on fair and objective criteria in order to keep people whose skills will benefit your organisation the most. If there is only one job vacancy you must ensure that you assess each employee at risk of redundancy carefully against the job description and person specification to ensure that it is given to the best candidate for the role.
Remember, however, to make reasonable adjustments that the disabled person might need to do the job.
If this assessment reveals that one person is more suited to the role than the others you should give the job to that person regardless of their personal situation or that of the others. Doing otherwise might lead to claims for unfair dismissal (and possibly discrimination claims as well) from the employees that you make redundant.
If all the candidates are genuinely equally qualified for the role you could offer it to the disabled person. This is because it is lawful for most employers to positively discriminate in favour of disabled people. If you are a public sector organisation you could give the job to the disabled employee, as this could fall under your duty to promote equality of employment for disabled people.
Selection of employees for redundancy
Q: We are in the process of selecting employees for redundancy. We have drawn up selection criteria and intend to assess each employee at risk of redundancy against this. One of our elected representatives has told us that we cannot apply one of the criteria, flexibility, to disabled employees as it is discriminatory. Are they right?
A: You need to assess how important it is to your business for remaining employees to be flexible and what exactly you mean by this term, e.g. to change hours or place of work, re-locate or take on additional duties? First, think about whether whatever flexibility requirement that is within the role can be modified i.e. done differently or given to another person. If this not possible, you may need to make the reasonable adjustment of not applying this criterion to a disabled employee who is substantially disadvantaged by this requirement if it isn’t essential. Remember however, that it will not be the case that every disabled employee cannot meet this requirement and so you need to take a case by case approach, not the one suggested by the employee representative.
For example, a disabled employee who works from home as a reasonable adjustment may not be able to be flexible about where they work and so you should think about whether it would be a reasonable in the circumstances not to apply the criterion to them. Another disabled employee may already move from site to site doing different jobs and so the requirement to be flexible will not put them at a disadvantage.
Q: During a recent round of redundancies we were careful to ensure that the process was accessible to disabled people and to take known reasonable adjustments into account when selecting people for redundancy. An employee who has never told us about a disability or had any reasonable adjustments has now complained that he has been unfairly selected for redundancy because of his disability.
He had a heart attack last year and had a period of time off sick. Since his return he has been less productive than his colleagues. He did not indicate on his sick certificates that he was disabled, and nor did he ask his line manager for reasonable adjustments at work. What should we do?
A: The Equality Act 2010 says that you must make reasonable adjustments for employees who you know, or could reasonably be expected to know, are disabled and are substantially disadvantaged by the working environment or arrangements because of their disability. Many employees will not describe themselves as disabled and may be surprised to learn that they have legal protection. Fewer still will know that they can ask for ‘reasonable adjustments’.
The onus was, therefore, on you as the employer to consider if this employee needed adjustments when he returned to work after his heart attack. His manager should have asked him if he was having difficulty with any aspects of his work and asked for advice from an occupational health adviser. It might then have emerged that he was finding it difficult to do certain aspects of his job because he has heart disease. His productivity might have improved if it had been thought possible that he was disabled, and simple reasonable adjustments had been made for him.
It is arguable therefore that you did or should have known that this employee was disabled when you were assessing him against your selection criteria for redundancy. Even if you did not, you have now been told that he has a disability and so you should reassess him in the light of the information you now have.
First, however you will need a report from an occupational health adviser who has had contact with the employee’s GP or heart specialist as appropriate to find out what impact his disability has on his ability to work. You should then consider if it would be reasonable to discount the period of sickness absence following his heart attack and to re-consider his productivity in the light of reasonable adjustments that might improve this. This might improve his score sufficiently to remove him from the redundancy list. Failure to re-assess him may result in his bringing a claim for disability discrimination.
Q: We furloughed a number of employees because it was not possible for them to do their jobs during the lockdown when we had to close parts of our business. We have now decided not to re-open those parts of the business and so plan to make the furloughed employees who worked there redundant. Should we calculate their redundancy payment based on their furlough salary i.e. 80% of their normal salary or their normal salary before they were furloughed?
A: All furloughed employees should receive redundancy payments at 100% of their salary rather than at the furlough rate of 80% of their normal salary. The Government brought in regulations on 31 July 2020 to this effect.
Q: All our employees worked from home during lockdown but as the restrictions are eased, we want employees to return to the office. It has been our policy not to permit working from home. We have some employees who are over 70 and others who have been shielding who we think will be reluctant to return to the office. Can we make these employees redundant?
A: This does not sound like a redundancy situation. If the work that these employees do still needs to be carried out by someone i.e. you are not closing all, or part of your business and you do not need fewer employees to do the work then they are not redundant, and you will be dismissing them. You risk potential claims for unfair dismissal, age discrimination and disability discrimination.