C was registered blind. She was made redundant from her role following a managed process whereby she
had been precluded from applying for a post at Band 6 in competition with another candidate during
Stage 1 of the redundancy process. The ET upheld unfair dismissal and discrimination claims. R appealed.
C was initially employed in a clinical post as a Senior Occupational Therapist at Band 6. In 2008 she
suffered a significant deterioration in her vision and an Occupational Health assessment recommended
redeployment. The only suitable alternative was a Band 4 post. In 2010 C was informed that her new
position was at risk due to a restructuring exercise at R. At the 1“ stage of the process candidates could
apply for posts in their Band or one Band above (but no higher). At the 2”“ stage candidates could
compete with their colleagues for a wider range of roles. C’s was not allowed to apply for a Band 6
vacancy in the 1st Stage and was later dismissed. After an internal appeal C was allowed to apply for the
band 6 role during the 2”°’ stage but not the 1“. Unfortunately, the role was filled during the 1“ stage. The
matching panel allocating the role concluded informally that C did not meet the essential criteria for the
role in any event. C’s appeal was dismissed. The ET held that R had not made the reasonable adjustment
of permitting C to apply for the Band 6 role at the 1“ stage and that the dismissal was unfair. The ET held
that there was not an act of discrimination arising in consequence of disability (s.15 EA 2010).
The EAT (HHJ Peter Clark) dismissed R’s appeal and allowed C’s cross-appeal against the finding that the
dismissal was not contrary to s.15 EA 2010. The EAT referred to the well-trod criteria in Environment
Agency v Rowan  IRLR 20. The PCP alleged to have put C at a disadvantage (R’s prohibition on staff
applying for posts more than one grade above their current banding) placed C at a substantial
disadvantage as she had been redeployed from a band 6 to a band 4 because of her disability. This meant
that she was precluded from applying for the band 6 role during the redundancy process. Interestingly,
the EAT did not accept that earlier redeployment was “too remote”. Archibald v Fife Council  IRLR
651 provided that sometimes disabled people must be treated more favourably than those who are not
disabled. As for the discriminatory dismissal, the EAT held that having found a breach of duty under s 20
EA 2010 the ET was bound to go on to conclude that the dismissal was inextricably linked with the failure
to make the adjustment and therefore an act of discrimination. Despite the genuine redundancy there
was a significant discriminatory element to the dismissal.
Claimants are frequently unable to convince tribunals to take the sort of bold steps that HHJ Clark held should have been taken in this case. The leap from disposing with the comparison exercise, to the making of a connection between an historic re-deployment and a redundancy exercise would be a step too far for most tribunals. HHJ Clark’s approach to identifying the “substantial disadvantage” is also worth examining. On the evidence there was a chance that C may have got the band 6 role. It was therefore a reasonable adjustment to allow her to apply for it. The likelihood of success was something that could be considered further at the quantum stage.