The EAT has held that the employer in Dominique v Toll Global Forwarding Ltd had failed in its duty to make reasonable adjustments by not adjusting the redundancy selection criteria where a disabled employee was placed at a substantial disadvantage even though the adjustment to the criteria would not have made a difference to the outcome. The receipt of lower scores was itself a disadvantage which making reasonable adjustments would have addressed.

Mr Dominique had suffered a stroke some years before which had left him with physical and cognitive impairments. He was selected against three others on criteria which he argued were subjective and did not take into account his restrictions in his arms and legs. He was dismissed as redundant and brought a claim for unfair dismissal and disability discrimination.  The later was pleaded as direct and indirect discrimination and a failure to make reasonable adjustments all in respect of the choice of criteria and the scoring.

The Tribunal found no evidence of direct discrimination.  The Tribunal found that the Claimant had been disadvantaged by the inclusion of two of the criteria and the weighting of the scoring but found justification.  It said that there had been no failure to make reasonable adjustments as these would not have changed the outcome.

The EAT held that the Tribunal had erred by focusing on the dismissal and the detriment and that it should have considered the question of detriment or disadvantage more generally.  The EAT went onto say that it was difficult to see as a matter of practice how a disadvantage that could have been prevented by a reasonable adjustment which has not been made could in reality be justified.

We are often asked when a duty to make a reasonable adjustment arises and what is a reasonable adjustment.

When does the duty to make reasonable adjustments arise?

The duty can arise in three circumstances:

• Where a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled.
• Where a physical feature puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled.
• Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with individuals who are not disabled.

What is a “reasonable” adjustment?

Although each situation will be different, there are a number of factors which may be taken into consideration when deciding if the steps a business has taken were “reasonable”, including:

• Whether the adjustment would actually solve the disadvantage identified.
• The practicality of the adjustment.
• The impact of the adjustment on the business as a whole.
• The financial and other costs of making the adjustment.
• The size of the business.

It is good practice for the business to ask the disabled person about possible adjustments. It is also advisable to agree any proposed adjustments with that person before they are made.