Claimant succeeds with unfair redundancy and discrimination claim after University placed weight on her ill health

In the recent case of Ms S McAuley v Canterbury Christ Church University: 2300946/2021 an employment tribunal considered the fairness of a redundancy selection.

The Claimant suffered from anxiety and depression, which was severe enough to attract protection as a disability under the Equality Act 2010. During a restructure the Claimant's post of Faculty Manager (Business Operations and Quality) was placed at risk of redundancy. The Claimant, together with two other Faculty Managers, was matched to the new role of Faculty Manager Operations. The new role was ringfenced for those matched to the new role. The Tribunal found that the matching process was fair.

Unfortunately, the Claimant had a mental health breakdown around the same time. Her ill health led her to consider ill health retirement and voluntary redundancy, however the Claimant later decided that she could return to work.

The Claimant was too ill to attend an interview for the Faculty Manager Operations post, and the employer decided to assess her application without requiring an interview. Unfortunately, the employer retained no notes of the interviews with the other candidates. However, the HR officer had made a note that the Claimant, " would not be appointable to the role," which from the surrounding comments appeared to be due to her ill health. For example, one comment, "does have a record of leading in changing environments, but is not there currently," could only be explained by the Claimant's current absence from work. The Claimant was unsuccessful in securing the role.

The Claimant and the other unsuccessful candidate, were then ring-fenced to the Faculty Manager-Quality role. Again, the Claimant was not appointed, and again there were no notes of the interviews or the process followed. As the selection panel included two members from the previous panel, the Tribunal decided that the panel had simply maintained the view that the Claimant was not appointable for health reasons.

Although the Tribunal noted that ill health could be considered in a redundancy process, it decided that the Claimant's dismissal was unfair because the panel had not accessed all relevant health information, including Occupational Health reports, which had been optimistic about the Claimant returning to work.

Moreover, as well as being unfair, the dismissal breached s.15 Equality Act 2010. Placing weight on the Claimant's sickness absence when selecting her for redundancy was unfavorable treatment. The employer argued that this was justified because they needed someone to commence in the role quickly, which the Claimant was unable to do. The Tribunal rejected this argument, recognising the common requirement to make a reasonable adjustment when waiting for an employee's return to work. As such the Claimant's inability to return immediately did not justify the unfavourable treatment.

Regarding compensation, the Tribunal decided that the Claimant would be entitled to one third of her loss of income, reflecting the one-in-three chance that she would have been dismissed through a fair selection. The Claimant is entitled to claim injury to feelings in respect of the discrimination claim.

Summary

Although it's important to retain interview notes in any recruitment process, it's particularly important where the unsuccessful candidate could be made redundant. If one candidate cannot attend an interview due to sickness absence, the selection panel should ensure that any weight placed on ill health is based on available evidence. It is also advisable to make it clear to the candidate that ill health will be considered, giving them the opportunity to make representations on any relevant factors.

When considering ill health employers should consider the applicable procedure. If an unwell employee has not been deemed incapable of undertaking a role under any capability procedure, the employer should be slow in placing weight on a perceived lack of capability during a redundancy process.

In summary, the employer might well have been able to achieve the same outcome without incurring liability had it followed a fair and thorough process.

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