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Adjustment to selection criteria not reasonable

In Lancaster v TBWA Manchester, the EAT held that the employer was not in breach of the duty to make reasonable adjustments for a disabled employee by not adjusting its redundancy selection criteria. The adjustments suggested were not reasonable, as they would not have prevented Mr Lancaster from being selected for redundancy.

Mr Lancaster suffers from a panic and social anxiety disorder and is disabled. He was a senior art director and was placed in a selection pool for redundancy, which included three criteria relating to communication skills. He received the lowest score and was made redundant. He lodged a disability claim arguing that the employer was in breach of its duty to make reasonable adjustments as: (i) the three communication skills criteria placed him at a substantial disadvantage and should have been removed; and (ii) in the alternative, all the redundancy selection criteria placed him at a substantial disadvantage because they were subjective and should have been replaced with objective criteria, such as attendance, disciplinary or absence record.

The tribunal dismissed Mr Lancaster’s claim. The suggested adjustments were not reasonable. The removal of the communication skills criteria would still have resulted in Mr Lancaster receiving the lowest score and insufficient evidence existed to show that just using objective criteria could have prevented Mr Lancaster from finishing bottom in the selection pool. The EAT agreed. Removal of the three communications skills criteria would not have affected the order of the scores and replacing all of the redundancy selection criteria with purely objective criteria would not be a reasonable because the position of senior art director was a creative position at a senior level and, therefore, purely objective criteria might not have been sufficient.

The case emphasises that in determining whether it is reasonable to take a particular step to remove a substantial disadvantage to a disabled person, an assessment has to be made as to the extent to which taking the step would prevent that effect.

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