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Friday 06 October 2023

How the law protects disabled staff during organisational change

By Jo Seery

Disabled managers often feel more at risk of losing their jobs during organisational change, despite legal protection under equality legislation. Jo Seery looks at the obligations on employers and explains what to do if you’ve been treated unfairly.

Sign in desert indicating dangerous bends for the next 4 miles

Organisational change can often lead to redeployment or redundancy, and it’s often disabled workers who feel most at risk. But it is unlawful under the Equality Act 2010 for employers to discriminate against disabled workers when implementing organisational change.

This article looks first at the obligations on NHS organisations under the Public Sector Equality Duty (PSED), then at some of the key questions that arise for disabled workers as a result of organisational change.

What is the public sector equality duty?

The PSED requires public authorities and those who exercise public functions to have due regard to the need to:

  • eliminate, discrimination, harassment, victimisation and other forms of conduct prohibited under the Equality Act 2010
  • advance equality of opportunity between people who share a relevant protected characteristic and those who do not share it
  • foster good relations between people who share a relevant protected characteristic and those who don’t.

Having “due regard” means that NHS organisations should consider the potential impact their organisational change policy and procedures will have on disabled workers. In particular, they should set out the steps they will take to prevent any adverse effects, for example, by making reasonable adjustments.

What if I think I’m being singled out for redundancy?

A redundancy situation may arise because of organisational change. But a genuine redundancy situation only occurs when the business closes, the employee’s workplace closes or fewer employees are needed to do the work available. If none of these apply, the employer is unlikely to be able to show that redundancy is the reason for the dismissal. In such cases, the tribunal will look to the employer to provide the true reason for dismissal. If the employer cannot provide a non-discriminatory explanation, a tribunal may draw an inference that the true reason is discriminatory. 

What makes a fair process?

Whether or not a restructure leads to a redundancy situation, the employer should follow a fair procedure when determining how the new structure will be applied to existing employees. This may involve slotting people into roles which are similar to their current role or requiring employees to apply for new jobs.

Whatever approach is adopted, the employer should ensure that any selection process is fair and non-discriminatory. So, when determining which posts should be ‘ring fenced’, the employer should ensure that they do not exclude disabled workers who are doing the same or similar roles to those which are being ring fenced. 

Can sickness absence be used to select people for redundancy?

Sickness absence is often for selection criteria in a redundancy situation as it is generally regarded as objective. However, if it includes disability-related absences this is likely to put disabled workers at a particular disadvantage since it makes it more likely they will be at risk of redundancy or not redeployed than non-disabled workers. In such cases, the employer is under a duty to make a reasonable adjustment, such as excluding disability-related absence from the selection criteria. Employers who use attendance as a criteria should also consider whether it would be discriminatory for this to include time off to attend medical appointments. 

What are my rights?

If you are not redeployed or offered an interview when another suitable role is available, the first thing to do is to ask the employer why. You can use the ACAS guidance Asking and Answering Questions about Discrimination at Work if you think the reason may discriminatory. For example, if an employer does not redeploy a disabled employee or offer them an interview because there is a reasonable adjustment in place, the employee could argue that they have been treated unfavourably for a reason arising from their disability.

  • Jo Seery is a senior employment rights solicitor at Thompsons Solicitors, MiP’s legal advisers. Visit the Thompsons website for more info. Legal Eye does not offer legal advice on individual cases. Members needing personal advice should contact MiP by emailing MemberAdvice@miphealth.org.uk.
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