Disability discrimination: adjusting the redundancy selection process
In Jandu v Marks and Spencer plc, an employment tribunal ordered M&S to pay the claimant over £50,000 for breaching its duty to make reasonable adjustments. It failed to discount any disability-related effects when assessing the employee against the redundancy selection criteria.
Ms Jandu, a clothing and home planner, has dyslexia. Her managers knew this and adjusted the way they communicated with her by e-mail. M&S decided to restructure its operations and began a formal redundancy consultation process.
It used three criteria: behaviours, technical skills and leadership skills. M&S dismissed Ms Jandu on 31st October 2020 because of redundancy. An extra point would have saved her job. The tribunal upheld the claims for failure to make reasonable adjustments, discrimination arising from disability, and unfair dismissal.
Where did M&S go wrong?
Ms Jandu lost marks in the redundancy selection process because of aspects of her performance that were linked to her dyslexia, such as a lack of 'accuracy and attention to detail' which required 'extra review time' from her managers.
M&S should have made reasonable adjustments in the redundancy process to discount such disability-related effects in the scoring. Ms Jandu had lost marks for her 'inaccuracies' and for 'rushing' in all three categories, which the tribunal deemed unfair.
The tribunal criticised the selection criteria as they 'contained no purely objective elements and left a great deal of scope for subjective opinion'. So, it was 'difficult for managers to apply them fairly and objectively'. Managers scored employees without any clear definition of what was covered under each criterion.
M&S should also have sought advice from occupational health once it knew that matters that led to Ms Jandu's selection for redundancy were connected to her dyslexia.
How can you avoid the same errors?
Ensure that your line managers are trained in recognising potential disabilities and that they notify HR and occupational health if they consider an employee may be disabled. The fact that a disabled employee has not proposed a particular step does not prevent it from being a reasonable step that you should take.
Dyslexia, which can amount to a disability under Section 6 of the Equality Act 2010, affects people in different ways and in a manner that is not always obvious, so assess any necessary adjustments on a case-by-case basis.
Consider adjusting a redundancy process or the redundancy selection criteria where it appears that an employee with a disability may be placed at a substantial disadvantage.
When using subjective criteria, such as performance, use existing evidence such as earlier appraisals. You can use subjective criteria as long as you apply them dispassionately.