Yes, according to the Employment Appeal Tribunal in the case of Dominique v Toll Global Forwarding Limited, even though the end result of dismissal would have been the same.
Mr Dominique was disabled and had previously suffered a stroke. As a result, he frequently made mistakes at work and generally struggled with computers.
Mr Dominique was selected for redundancy on the basis of his poor productivity and accuracy; their selection criteria.
Mr Dominique brought claims for unfair dismissal and disability discrimination, alleging that his employer had failed to make reasonable adjustments to the selection criteria applied to him.
The EAT decided that the productivity and accuracy criteria placed Mr Dominique at a substantial disadvantage, and would therefore warrant a ‘reasonable adjustment’ for discrimination to be avoided. A reasonable adjustment would have been to adjust the scores. The employer had not taken this step, and they were therefore liable for discrimination.
Implications for businesses
This case really does highlight the fact that an employer should give full consideration to all reasonable adjustments to ensure that its redundancy process is not discriminatory. Of course, this does not mean automatically putting disabled employees to the top of the group.
The case report can be found here.