Non redundancy situations – redeployment as a reasonable adjustment for disabled colleagues.
This short summary outlines what is meant by the term redundancy and highlights the difference between redeployment as a reasonable adjustment under the Equality Act 2020 and redeployment in a redundancy context.
What is redundancy?
Redundancy, if all the correct procedures are followed, is a lawful and fair way of dismissing employees for whom the employer no longer has work. As the word itself suggests, there is no longer anything for that employee to do and so the employer has to terminate their contract of employment.
You can, therefore, only lawfully make employees redundant if:
- The business as a whole is closing.
- A particular branch, office or workplace is closing.
- Fewer employees are needed to do particular work.
All employees at risk of redundancy, regardless of whether or not they have a disability, should be considered for redeployed positions within the business.
When are dismissals not redundancies?
Redundancies are made for business or structural reasons. They are not dismissals for individual performance or conduct reasons.
If the employee’s job still needs to be done but they are not able to do the work for any reason, including a disability, they are not redundant. Sometimes an employee who resigns because they are unhappy with their working situation and might believe that they are redundant. This is not the case. If an employee resigns for any reason this is not a redundancy situation, even if the employee does not have another job to go to.
An employee whose contract is terminated by the employer because they are no longer able to do their job, even with reasonable adjustments, is also not redundant if the work they used to do still needs to be done by another employee.
Reasonable adjustments to retain employees
Employers must ensure that all reasonable adjustments that would have enabled the disabled employee to retain their job, or do another job for the organisation, have been made before the employee’s contract of employment is terminated in these non-redundancy situations.
Employers have a duty under the Equality Act 2010 to make reasonable adjustments to remove barriers that place a disabled employee at a substantial disadvantage so that they can do their job. A reasonable adjustment for a disabled employee who is not able to travel to their workplace because they are more susceptible infection, for example, might be to allow them to work from home or continue working from home if the role can be performed from home.
Redeployment as a reasonable adjustment under the Equality Act 2010
If there are no reasonable adjustments that would enable a disabled employee to do their current job, employers must look for suitable alternative vacancies to which the employee can be transferred.
Remember that vacancies might be suitable if other reasonable adjustments are made, e.g. changing hours or location, providing equipment or allocating non–essential duties the disabled person cannot perform to someone else.
The case of Archibald v Fife Council, [House of Lords] made it clear that it is a reasonable adjustment to transfer a disabled person to a suitable alternative vacancy. This means that it is not enough simply to alert an employee of internal vacancies for which they can apply. Disabled employees who need to be redeployed as a reasonable adjustment should not be required to take part in competitive interviews for vacant posts.
This is redeployment as a reasonable adjustment under the Equality Act 2010 and is different to redeployment of an employee, disabled or not, who is at risk of redundancy.
If a disabled employee cannot do their job even with reasonable adjustments and there is genuinely no other suitable alternative vacancy in the organisation, the employer can terminate the employee’s contract. This may be a fair dismissal, but the employee is not redundant and is not entitled to a redundancy payment. This is because that employee’s job still needs to be done and the employer will have to find someone else to do the work. There is nothing, however, to prevent employers from coming to an agreement to pay the employee a severance package.