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End of the road for Seymour-Smith
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Disabled should be in the A Team
Disabled employees are often most at risk in redundancy situations. Selection criteria that is based on sickness absence can discriminate against the disabled, as can criteria such as multi-skilling and adaptibility. In this case the Employment Appeal Tribunal has had to scrutinize the Kent County Council redeployment policy in light of the Disability Discrimination Act 1995, and found it wanting.
Mr Mingo, an Assistant Cook with Kent County Council, injured his back at work and was unable to continue in this role. Mr Mingo's attempts to find alternative employment with Kent County Council were thwarted by the Council's redeployment policy. Under the policy staff at risk of redundancy (called 'category A staff') would be interviewed for any internal vacancies before any applications from other staff were considered. If the category A staff met the person specification then they would be appointed. Staff who were being re-deployed on the grounds of incapability/ill health were the next in line for consideration for redeployment and were called 'category B staff'. Even after the Council introduced a new category to cover staff with a disability under the Disability Discrimination Act, category A staff continued to be placed at a higher level.
Mr Mingo was repeatedly turned down for internal posts in favour of category A redeployees.
The Employment Tribunal agreed with Mr Mingo that his correct comparators were category A staff, not other category B employees who were incapable of performing their duties, but for reasons other than disability. He was on the redeployment list for a reason connected with his disability. That reason did not apply to category A staff - they were redundant, therefore Mr Mingo could compare his treatment to that of category A staff.
The Employment Appeal Tribunal upheld the decision.
A redeployment policy of giving preferential treatment to redundant or potentially redundant employees does not adequately reflect the statutory duty on employers under the Act, since it means that those with disabilities are relatively handicapped in the redeployment system. In the present case had the employers' policy permitted the applicant to be treated as a category A redeployee, on the facts found by the tribunal, he would have been redeployed and not dismissed. On that basis, the Tribunal was entitled to conclude that the appellants had unlawfully discriminated against him.
The Council had also failed to consider any reasonable adjustments in relation to the posts the Applicant was interested in applying for. Indeed, one of the managers was more concerned whether making an adjustment for Mr Mingo would be fair to the other staff. Therefore the Tribunal was also correct in finding that the Council had failed in it's duty to make reasonable adjustments to enable Mr Mingo to undertake a new post
The case of Kent County Council against Mingo is a useful reminder that statutory rights override collective agreements and that redundancy and redeployment policies are particularly prone to result in unlawful disability discrimination.