As an HR professional, you’ll likely encounter situations where an employee discloses a disability during redundancy consultation process. This timing often reflects the natural human response to change, as employees consider how different roles or working arrangements might affect them. While this scenario requires careful handling, it’s completely manageable with the right approach.
The Legal Framework and Obligations
The Equality Act 2010 provides clear protection for employees with disabilities, including during redundancy situations. The Act defines disability as a physical or mental impairment that has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities. When an employee discloses a disability, employers are required to consider reasonable adjustments and ensure discrimination does not take place during the redundancy process.
Understanding the Context
Redundancy consultations naturally prompt employees to think deeply about their continued employment, including how changes might affect their health conditions or disabilities. Some might only now recognise that their long-term health condition meets the legal definition of disability. Others might realise that a change in role could affect their ability to manage their condition effectively.
The key here isn’t to question why the disclosure is happening now, but to focus on managing the process effectively moving forward. Your role is to ensure fair treatment while maintaining a professional, supportive approach to the consultation process.
Managing the Immediate Response
When an employee shares information about their disability during consultation, your immediate response matters significantly. A professional acknowledgment might be: “Thank you for sharing this information. Let’s take some time to understand how we can best support you through this process.” This sets the right tone while giving you space to consider next steps.
You’ll need to pause the redundancy consultation – not indefinitely, but long enough to gather relevant information and review your approach.
Exploring Reasonable Adjustments
In many cases – indeed, the majority – reasonable adjustments can be identified that enable the employee to remain with the organisation post-restructure. These adjustments might be surprisingly straightforward: modified working hours, ergonomic equipment, or slight changes to responsibilities. The key is to approach the process with genuine openness to finding solutions.
When considering workplace adjustments, start by understanding what aspects of the role or working environment might present challenges for the employee. Consider what practical steps could address these challenges, how potential adjustments would impact service delivery or business operations, and what resources would be required to implement them effectively.
Remember that ‘reasonable’ cuts both ways – the adjustment needs to be both effective for the employee and feasible for the organisation. Cost, practicality, and business impact all play legitimate roles in determining what’s reasonable in the context of your organisation.
Lawful Discrimination
While direct disability discrimination can never be justified, the Equality Act 2010 recognises that sometimes practices which indirectly disadvantage disabled employees might be lawfully justified if they represent a proportionate means of achieving a legitimate aim. During redundancy, this might arise when considering alternative roles or implementing selection criteria.
- Legitimate aims often relate to genuine business needs such as:
- Economic efficiency during restructuring
- Maintaining quality and consistency of service delivery
- Health and safety requirements
- Meeting regulatory obligations
- Ensuring business continuity
However, simply identifying a legitimate aim isn’t enough – the means of achieving it must be proportionate. For instance, if an organisation needs to maintain 24/7 customer support coverage after restructuring, requiring all remaining staff to work rotating shifts might disadvantage an employee whose disability affects their ability to work nights. While maintaining service coverage is a legitimate aim, the organisation would need to demonstrate they’ve explored less discriminatory alternatives before concluding this requirement is proportionate.
Similarly, if remaining roles require significant physical activity that might disadvantage an employee with a mobility impairment, this could potentially be justified if the work genuinely cannot be modified without fundamentally changing the nature of the role. However, you would need evidence showing you’ve thoroughly explored possible adjustments and alternative ways of organising the work.
The key here lies in being able to evidence both the legitimacy of your aim and the proportionality of your approach. This means showing that:
- Your business need is genuine and not merely a preference.
- You’ve considered all reasonable alternatives.
- The impact on the disabled employee has been carefully weighed against the business need.
- You’ve explored whether the same aim could be achieved in a less discriminatory way.
Documentation becomes particularly important here. Rather than simply stating that alternatives aren’t feasible, you need clear records showing what options were considered and why they weren’t viable. This might include operational assessments, cost analysis, or impact evaluations demonstrating why particular requirements are essential for business effectiveness.
Managing More Challenging Situations
Sometimes, despite best efforts and thorough evaluation, it becomes apparent that available roles may not be suitable, even with reasonable adjustments. This can occur when the core functions of available roles cannot be adjusted without fundamentally changing the nature of the position. Even providing training, which might seem like a reasonable solution, may not bridge the gap if the underlying obstacles preventing the person from performing the role would remain. For instance, training someone in new software systems might be reasonable, but if the core challenge relates to the physical demands or essential cognitive requirements of the role, training alone won’t make the position suitable without fundamentally altering its nature.
Similarly, there may be instances where suggested adjustments would create unsustainable operational challenges, or where the cost or impact of adjustments would be disproportionate to their benefit. The assessment needs to consider both immediate adjustments and potential ongoing training needs – while some degree of additional training support might be reasonable, extensive or continuous training that still wouldn’t enable the employee to perform the core requirements of the role wouldn’t be considered a reasonable adjustment.
In these situations, transparency and documentation become essential. Your process should demonstrate thorough exploration of all potential adjustments, including training possibilities, and careful consideration of each available role. This includes appropriate consultation with occupational health where relevant and maintaining open dialogue with the employee throughout. Most importantly, maintain clear records of your reasoning for concluding certain adjustments, including training options, aren’t reasonable.
Supporting Unsuccessful Candidates
If it becomes clear that an employee won’t secure an alternative role, this resulting conversation requires sensitive handling. Your communication should clearly explain the reasoning behind decisions, focusing on objective factors rather than disability-related issues. For instance, you might need to explain how, even with adjustments, certain essential criteria for available roles cannot be met.
Your documentation should detail what adjustments were considered and why certain options weren’t feasible, always linking decisions back to legitimate business requirements. This careful documentation serves multiple purposes: it demonstrates fair process, provides clear rationale for decisions, and helps both parties understand the journey to this outcome.
When Things Go Wrong
Even with the best intentions, employees may feel their disability wasn’t properly considered during redundancy, leading to allegations of disability discrimination. Such situations often arise when there’s a perceived lack of thoroughness in exploring adjustments, insufficient documentation of decision-making, or unclear communication about why certain options weren’t feasible. These perceptions can result in grievances, employment tribunal claims, and significant organisational risk.
The difference between a defensible redundancy decision and a successful disability discrimination claim often lies in the quality of your process and documentation. Employment Tribunal decisions consistently emphasise the importance of demonstrating genuine consideration of disability-related adjustments and clear reasoning for decisions. Without contemporaneous notes of conversations, meetings, and decision rationale, organisations can struggle to evidence fair treatment, even when their intentions were good.
Building Robust Procedures
Having investigated numerous disability discrimination claims arising from redundancy situations, I’ve observed that most issues stem from inadequate process rather than intentional discrimination. Common pitfalls include rushing the consultation process after disability disclosure, failing to properly document conversations about potential adjustments, or not clearly recording why certain adjustments were considered unreasonable.
Employers often believe they’ve acted reasonably, but struggle to demonstrate this when challenged. Effective handling requires more than just following process – it needs clear evidence of thoughtful consideration, appropriate consultation, and rational decision-making at every stage. This means maintaining detailed records of all discussions, ensuring clear communication throughout and carefully documenting which adjustments were considered and why some weren’t feasible.
Need Support?
Whether you’re managing a current disability disclosure during redundancy or facing allegations that this situation wasn’t handled appropriately, independent expertise can help ensure fair process and thorough documentation. Contact me at ayesha@ayeshawilson.co.uk to discuss how workplace investigation services can help identify risks, strengthen processes, and support better outcomes in these sensitive situations.
