FAQ/redundancy selection – what if attendance is affected by a disability?

When it comes to redundancy selection a common criterion used by employers is attendance. But what if the employee has a disability which impacts negatively on their record? Should you make an adjustment for that and, if so, how? It’s a question we are often asked so we are including it in our FAQs series of programmes. On the line from Edinburgh with her view on handling this, employment lawyer, Sarah Munro:

Sarah Munro: “In relation to selection criteria generally, the aim always as an employer is to make them as objective as possible so that you can effectively, independently, verify them and they should be measurable and not just based on personal opinion. So, in the context of a selection criterion that is often used, which is attendance records, we need to be really careful that we're not inadvertently subjecting someone to discrimination when applying, on the face of it, an objective selection criterion. So, when we're looking at attendance records, which is often used by clients to determine who should be selected for redundancy, we need to ensure that any disability-related absences are properly accounted for in the round, so we are not discriminating against those who have been off for a disability-related reason. So the most obvious way of doing that is to completely discount a disability-related absence and that is what we see a lot of our clients doing, and making sure then that that person who's been off with disability-related absence is not disadvantaged when being compared to others who have not been off for disability-related reasons. So, that's the first way you can deal with it to make sure that you're not discriminating against people on grounds of disability is simply by discounting it. The second way of doing it is by extending the period over which you look at somebody's attendance. So, often, you might say we are going to score you on your attendance over the past year or two years. Now, if an individual's been off for a disability-related absence during that time, their score is going to be low so what you can do is you can extend it and say, okay, we'll look at it over the last five years, and then that person who perhaps has had no absence at all up until very recently is then not disadvantaged. So, it's making sure that you are looking at your selection criteria, making sure that’s objective, using something like attendance records, which is perfectly acceptable, but taking account of any disability-related absences and making sure that, as an employer, you're making the appropriate reasonable adjustments.”

This programme has been added to our FAQs series of programmes on redundancy issues, both individual redundancies and collective. The programmes are badged as ‘Analysis’ and you can find them using the search engine on the Out-Law website.