In McCarthy v Jaguar Cars Ltd the Employment Appeal Tribunal considered, and upheld, an Employment Tribunal decision that where a disabled person had been selected for redundancy although the selection criterion relating to attendance amounted to a discriminatory provision, criterion or practice, the employer had made a reasonable adjustment by scoring the employee on the period before he became disabled.
Mr McCarthy was a process engineering manager who became ill with depression and went off sick in 2007. There was no dispute that his illness was a disability. He was still absent from work when a redundancy situation arose in 2009. He fell within the pool for selection, scored poorly and was made redundant. He appealed successfully and was re-scored, this time based purely on his attendance and performance prior to his illness when he was at work and performing well. The result of the re-mark was virtually the same.
The Employment Tribunal found that the re-mark was an appropriate way forward and “expunged any disadvantage” to Mr McCarthy and the Employment Appeal Tribunal upheld the decision.
It is quite plain that the Tribunal were accepting the concession made, that the application of the criterion would ordinarily lead to a substantial disadvantage to the Claimant, and they were satisfied, for the reasons we have just reproduced, why it was that the steps taken by the employer removed the relevant disadvantage. Against that background, we reject the proposition that it was necessary to deal, for example, with Mr McCarthy’s contention that there were different ways of making reasonable adjustments (for example by averaging his points). The Tribunal found that what was done was the making of reasonable adjustments and that they eliminated the disadvantage.
Overlaps between rights and procedures such as those highlighted in this case can often seem daunting for employers, so much so that I can think of some employers who have abandoned proposed dismissals for fear of procedural errors. Another good example is the difficult co-existence of protection from disability discrimination and dismissal on the ground of ill-health incapacity. In fact, as long as key principles are adhered to, employers can proceed in relative safety. For example, dismissal for incapacity will generally be fair as long as it is established (almost always supported by professional medical evidence) that the employee will be unfit to return to work for the foreseeable future. Assuming that the reason for absence is also a protected disability, the employer needs to consider whether reasonable adjustments can be made to accommodate the needs of the employee taking into account the disability, e.g. different working hours or changes to duties or the working environment. If the adjustments can enable a return to work then the question of dismissal falls away. If there are no reasonable adjustments that will enable a return to work then the employer will have discharged the obligations applicable pursuant to the Equality Act 2010 and dismissal for incapacity can then be implemented.
McCarthy is a good example of an employer making sensible adjustments to take into account disability with a view to achieving overall fairness.
