EAT UNFAIR DISMISSAL – Compensation
DISABILITY DISCRIMINATION – Reasonable adjustments
AGE DISCRIMINATION
The Appellant, a senior art director at a marketing and advertising agency, was aged 50 when he was dismissed for redundancy. The Employment Tribunal did not err in dismissing the Appellant’s claim under the Disability Discrimination Act 1975. He sought an adjustment by the substitution of some redundancy selection criteria which required communication skills which he contended placed him at a disadvantage as he has a social anxiety disorder with objective criteria such as attendance and length of service. The ET held that the substitution of the three offending criteria with those suggested by the Appellant would have made no difference to his final score. Applying DDA section 18(1)(a) the ET did not err in having regard to the extent to which taking the suggested step would prevent the effect in relation to which the duty is imposed in deciding that the adjustment was not reasonable. Further the ET did not err in holding that replacing all the redundancy selection criteria with objective measures would not be a reasonable adjustment. The ET was entitled to so conclude on the evidence having regard to the creative and senior level of the post held by the Appellant.
The ET was entitled to hold on the evidence that the Appellant’s age discrimination claim was to be dismissed.
The ET held that the Appellant’s dismissal for redundancy was unfair for failure to consult him. The ET erred in limiting the compensatory award to 4 week’s pay without considering whether the Respondent had made reasonable efforts to identify and offer suitable alternative employment and whether the Appellant would have accepted such employment. Case remitted to the Employment Tribunal for assessment of compensation in the light of evidence on this issue.
Slade J said: ‘in our judgment an adjustment which gives a Claimant ‘a chance’ to achieve a desired objective does not necessarily make the adjustment reasonable. The material question for an ET in considering its effect, which is one of the factors to which regard is to be paid in assessing reasonableness, is the extent to which making the adjustment would prevent the PCP having the effect of placing the Claimant at a substantial disadvantage. That enquiry is fact sensitive.’
Slade J
[2011] UKEAT 0460 – 10 – 1702
Bailii
England and Wales
Cited by:
Cited – Firstgroup Plc v Paulley CA 8-Dec-2014
The claimant a wheelchair user had been unable to travel on a bus when a mother had left her sleeping child in a pushchair. The mother said she was unable to fold down the pushchair, and would not move the child. The claimant said that the driver . .
Cited – Firstgroup Plc v Paulley SC 18-Jan-2017
The claimant wheelchair user alleged discrimination by the bus company. The space reserved for wheelchair users on a bus had been wrongly occupied by a passenger who refused to vacate the space. The claimant said that the bus driver should have . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.441149 br>