In the recent case of
Dominique v Toll Global Forwarding Ltd the EAT held that an employer had failed
in their duty to make reasonable adjustments when it did not adjust certain
redundancy criteria which placed a disabled employee at a substantial
disadvantage. This was in spite of the fact that the adjustments would have
made no difference to the eventual decision to dismiss the employee.
Mr Dominique was employed
by Toll Global Forwarding Ltd (Toll) in their invoicing department. He suffered
a stroke a few years before the redundancy exercise, and the physical and
cognitive impairments that resulted constituted a disability for the purposes of
the Equality Act 2010. Mr Dominique made frequent errors and struggled to cope
with a computer system.
In January 2011, Toll
indicated that one redundancy from the invoicing team of four was required. The
selection criteria were identified and Mr Dominique scored the lowest overall
score out of the pool of four, particularly in relation to productivity.
Mr Dominique was
dismissed by reason of redundancy and subsequently brought claims against Toll
for unfair dismissal and disability discrimination. Amongst other things, he
claimed that Toll had failed in their duty to make reasonable adjustments in
relation to their choice of redundancy criteria as well as the redundancy scoring.
At first instance, the
tribunal found that there had not been a failure to make reasonable adjustments
since adjusting Mr Dominique’s scores would not have allowed him to avoid
dismissal. However, on appeal, the EAT found that dismissal was not the only detriment
or disadvantage for Mr Dominique. The inclusion of productivity and accuracy as
selection criteria placed him at a substantial disadvantage, which itself was
detrimental, causing hurt feelings. This should have been weighed up when
considering potential adjustments. The EAT indicated that any injury to
feelings award was likely to be on the lowest scale of the Vento guidelines.
This case highlights the
importance of employers turning their minds to the possibility of adjusting
redundancy scores even where it will not ultimately affect the outcome of the