Redundancy, discrimination and proof
- By James Ferguson
When does a redundancy situation give rise to a discrimination claim?
This was a question recently considered by the Industrial Tribunals in Belfast.
The claimant was appointed as a full-time electronics assembly technician in 2016, having retired from a manual job in building and maintenance work. He made no mention of any disability. In 2018, at the claimant’s request, he reduced his hours to four days a week.
The respondent company had a headcount of around 25 employees. One of the two Directors is registered blind. Of this, the Tribunal noted:
It is highly unlikely that an individual with a particular protected characteristic, such as disability, would discriminate against another individual with the same protected characteristic in the manner alleged, or at all.
The claimant was sometimes asked to carry out duties beyond his principal role. This was per his contract of employment and did not involve work that would have been more physically demanding than his ordinary duties as an Electronic Assembly Technician.
The Tribunal concluded that the claimant carried out these duties but that he raised no complaint at the time.
The respondent had no reason at this point to believe that the claimant had been disabled.
In June 2019, it became apparent to the respondent company that, with the loss of a contract, their workload could potentially be reduced by over 50% with serious implications for the company and its workforce. The Directors initially tried to identify new customers who might replace, at least in part, the volume of work that was about to be lost. Those efforts proved unsuccessful, and in late September 2019, they approached an accountancy firm to get further advice about the appropriate redundancy process. They were provided with appropriate advice, including a flowchart based on the LRA Guidelines. Alternatives to redundancy were discussed. The number of people who might have to be made redundant and the selection criteria were also discussed.
After a few meetings, it was agreed in November 2019 that that the redundancy pool should be the production area which contained the claimant and that six redundancies were needed. The redundancy criteria were settled, and once applied, five staff, including the claimant, were selected.
At that time, the claimant, who suffered from back pain and osteoarthritis, was on sick leave following a hip replacement.
The claimant alleged that he had been unfairly selected for redundancy and that this was discrimination on the grounds of disability.
Unfair Selection for Redundancy
- The respondent company had been facing a genuine redundancy situation which had required a significant reduction in its workforce.
- The redundancy selection criteria were perfectly standard and conformed to LRA Guidance.
- The respondent company had engaged in genuine and reasonable consultation.
- Alternatives to redundancy were discussed.
- The redundancy scoring exercise had been conducted fairly.
- The respondent has demonstrated that the reason for the claimant’s dismissal had been redundancy.
- The redundancy procedure had been both careful and fair.
- The dismissal was fair.
The onus of proof in this matter has not shifted to the respondent. There would have to be some prima facie evidence of unlawful age discrimination. There was none.
The Tribunal was satisfied that the claimant was “disabled” within the meaning of the Disability Discrimination Act 1995. Further, the respondent would have known this once the claimant indicated he was going on the sick for his hip replacement. There was, however, no evidence that the respondent was otherwise aware of the claimant’s disability before that.
Whether or not the respondent had been aware of the claimant’s disability at an earlier stage, the onus of proof in relation to disability discrimination, or indeed for disability-related discrimination has not shifted to the respondent. There is no prima facie evidence that he had been treated badly because of his disability or for disability-related reasons.
All claims were dismissed.