Firm but unfair: The risks of rigidity for employers

The ruling in a recent unfair dismissal case involving a teacher on long-term sick leave demonstrates that employers must take a structured and flexible approach to redundancy and restructuring processes.

The recent case of Healey v Lancashire County Council & Ors is a timely reminder for employers coming out of lockdown and the furlough scheme of the dangers of applying rigid restructure and redundancy processes across workforces.
 
Although the facts of the case pre-dated the pandemic, the outcome shows that implementing blanket policies, without fully considering the impact these may have on protected groups, such as workers with disabilities or other protected characteristics, can land employers in hot water, even where the processes adopted by the employer might seem fair at face value.
 
The full judgement in the Healey case is available here, but in summary, Mrs Healey had been a qualified school teacher, employed by Lancashire County Council since 1995. Over the years, her role had evolved into a senior position with greater responsibilities.
 
In 2014, Mrs Healey was diagnosed with cancer, causing her to take various periods of absence from her role until 2018.
 
In 2018, Lancashire County Council implemented a restructure that had been anticipated for several years. As part of the restructure of Mrs Healey's team, she was informed by the council that she was required to express interest in roles that she wished to be considered for, and that she would need to be interviewed for the positions.
 
At the time, Mrs Healey was in hospital and on long term sickness absence. She explained to her employer that this may impact her ability to attend the interview.
 
Lancashire County Council did not take steps to enquire what adjustments could be made to assist Mrs Healey with her interview. Even though management questioned whether it was appropriate to require Mrs Healey to attend an interview in light of her long term absence and ongoing treatment, the council stood by its assertion that "there was a requirement to select candidates using an interview process".
 
Ultimately, Mrs Healey was unsuccessful in the interview process and a colleague was appointed to a role almost identical to that carried out by Mrs Healey over the previous six years.
 
It was this rigidity of process that proved decisive against Lancashire County Council, when Mrs Healey took her employer to tribunal for unfair dismissal on the grounds of disability discrimination.
 
Reasonable adjustments are essential
 
Rigid processes that do not take account of protected groups or certain circumstances can give rise to successful claims against employers when adopting redundancy or other internal processes.
 
The approach adopted by Lancashire County Council in Mrs Healey's case follows a key misconception commonly held by employers – that by applying the rules consistently to all individuals, that they are treating everybody fairly and consistently.
 
However, this can frequently have the opposite effect, placing some individuals at a disadvantage.
 
As an employer, it is important to remember that the law protects individuals with disabilities from being treated unfavourably because of something arising from their disability. It places a positive obligation and onus on employers to make reasonable adjustments to any "provisions, criterion or practices" which would place disabled individuals at a disadvantage.
 
In Mrs Healey's case, the application of the "criterion" to require her to "reapply" for a job almost identical to the one she had carried out for many years when her managers were aware she could perform the role, placed her at a severe disadvantage when she was on long term sickness absence and had problems with her memory from chemotherapy.
 
Despite the council adopting the same scoring system for both candidates for the role Mrs Healey was required to interview for, the tribunal found that this severely disadvantaged Mrs Healey – and that this ultimately led to her dismissal, her dismissal being unfair and her disability discrimination claims being upheld.
 
As businesses reassess their working practices and potential restructures in the light of changes brought about by the Covid-19 pandemic, this is a salutary lesson in the importance of carefully considering wider factors which may affect employees in redundancy processes.
 
What should employers do?
 
We always recommend that employers adopt a structured but flexible approach to redundancy processes.
 
The consultation process that employers are required to carry out provides the perfect opportunity to identify and take into account issues or concerns that could otherwise give rise to employment tribunal claims.
 
This may include making adjustments to the process, as in Mrs Healey's case, or could be as varied as disregarding periods of sickness absence employee redundancy scores.
 
Employers who fail to identify or react to sensitive employee issues will face the risk of costly tribunal claims.
 
Fieldfisher are specialists in advising on the breadth of issues organisations face in the employment space, so please do get in touch to learn more.