It is relatively common for an employer to have redeployment opportunities arising from a restructure. However, difficult issues can arise in practice where the employee at risk of redundancy suffers from a disability which might disadvantage them during the redeployment selection process. How far must an employer go in adjusting the selection process for an alternative position and can it insist on the employee attending an interview? These were the issues considered in the case of London Borough of Southwark v Charles.
Many of these cases depend upon their facts. I have outlined those facts in some detail below because in my experience they represent a fairly common turn of events, where employers are operating within grey areas and not always with perfect information. Mr Charles was employed by London Borough of Southwark as an Environmental Enforcement Officer (grade 9). In March 2011, he was told that his position was redundant but that certain posts had been ringfenced as redeployment opportunities. He was one of several “at risk” employees who interviewed for roles as a Noise Support Officer (grade 7). He was unsuccessful and asked to join the redeployment pool, which would give him three months to find an alternative post.
On 10 May 2011, Mr Charles was told that his employment would terminate on 3 August 2011. On 13 May 2011, his GP signed him off sick for three months due to “sleep paralysis agitans”, a condition which meant that Mr Charles woke up at night, paralysed, and so felt unable to go back to sleep. This led to him suffering from depression. This was the first that Southwark knew of his disability and its cause. It referred him to its occupational health provider, Atos. At this time the employees in the redeployment pool were invited to interview for further Noise Support Officer posts but Mr Charles did not express an interest. On 17 June 2011, Atos advised that Mr Charles was not fit to attend “administrative meetings”.
On 29 July 2011, Southwark confirmed Mr Charles’s dismissal date. Mr Charles submitted a detailed letter of appeal following which an HR adviser, Ms Williams, sent him an email asking whether he still wished to be considered for a Noise Support Officer post. Noting that he was signed off sick until 30 August 2011, Ms Williams asked him to let her know when he might be well enough to attend an interview.
On 4 August 2011, Mr Charles was told that his dismissal was being put back to 26 August 2011. The following day his GP issued a further sick note, expiring in November 2011. Mr Charles asked whether the Noise Support Officer post involved shift work and unsocial hours and advised that he would confirm whether he was interested in the post once he had that information. On 9 August 2011, Ms Williams advised that the post involved shift work, but if Mr Charles was successful at interview Southwark would consider reasonable adjustments. Mr Charles did not reply.
On 11 August 2011, Southwark asked Atos if Mr Charles was well enough to attend an interview. Atos made several attempts to contact Mr Charles but was unable to do so because he had switched off his mobile phone. Ms Williams emailed details of four vacancies to Mr Charles and asked him to let her know if he was interested. He did not reply. On 25 August 2011, Southwark confirmed that Mr Charles’ employment would terminate the following day “in the absence of receiving an expression of interest from you regarding vacancies” and “no indication as to whether you are able to attend interviews”.
After his appeal against dismissal was unsuccessful, Mr Charles brought claims for unfair dismissal and disability discrimination (failure to make reasonable adjustments and discrimination arising from disability). The tribunal held that Mr Charles had been dismissed for redundancy and that his dismissal had been fair (there had been adequate consultation and he had been offered the opportunity to apply for other jobs). However, he succeeded in his disability discrimination claims.
Southwark appealed but the EAT dismissed the appeal.
Considering the tribunal’s findings in relation to the alleged failure to make reasonable adjustments, the EAT held that the tribunal had been entitled to find that:
- Southwark’s practice in requiring those in the redeployment pool to attend for interview for potential redeployment posts was a practice, even though it may not have been a criterion or a provision.
- The practice put Mr Charles at a substantial disadvantage because he could not attend an interview so he could not demonstrate that he was qualified for any of the jobs for which he might have applied. In particular, he had been unsuccessful in his application for the post of Noise Support Officer, for which he had indicated a qualified expression of interest.
- Southwark knew that Mr Charles suffered from a significant disability in the form of an inability to attend administrative meetings. The EAT considered that the tribunal had “understandably and sensibly” concluded that these meetings included interviews for new jobs.
Although the Claimant won his disability discrimination claim the EAT doubted whether compensation should be awarded on the assumption that Mr Charles should just have been appointed to the Noise Support Officer’s role without the need for an interview. If the reasonable adjustment which should have been made was that Mr Charles should not have been subjected to a formal interview process but that his suitability should have been assessed by some other means, it did not follow automatically that he would have been appointed to the post of Noise Support Officer. The Claimant’s trade union representative had suggested that an interview could have taken place at the Mr Charles’s home, or information could have been required from him in advance, or a less formal interview process could have taken place. The Tribunal noted that as Mr Charles had been an employee since May 2008 managers could have been consulted for an assessment of his abilities for a post which was two grades below his current post. In a nutshell, it was possible that even if the employer had adjusted the selection process for the redeployment opportunity, it is not necessarily the case that Mr Charles would have been appointed to one of those roles.
This case illustrates that in a redundancy exercise a disabled employee is rarely entitled to a redeployment role as of right, but neither is the employer entitled to insist that such an employee complies with its standard interview selection process, where that would disadvantage them as a result of their disability.
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