Veitch Penny LLP - Exeter | Crediton, Devon

Case

Grantham v Coletta and Tyson Limited

Issues

(1) Disability discrimination - unfair dismissal
(2) Applicant suffering from dyslexia
(3) Redundancy - less favourable treatment
(4) Duty to make reasonable adjustments
(5) Award for injury to feelings

Facts

The Applicant was employed by the Respondent as an horticultural labourer, initially on a casual basis before becoming permanent. The employment had commenced in March 1997 when the Applicant was assessed at grade G4. The Applicant suffered from severe dyslexia of which the employers were unaware of when they first took him on. He had to be assisted by his co-workers with tasks he had difficulty with due to his disability.

The Respondent operated a number of market gardens over several sites and employed up to 1,000 people of which 200 - 300 were permanent employees.

In July 2001 the Respondent was installing new machines and was not replacing low skilled workers who left in September 2001. Some workers began to job share and some were transferred and promoted to team leaders, from G4 to G3. In October 2001 the Respondent decided to make another 20 or so permanent employees redundant and the Personnel Officer undertook a redundancy selection. The Applicant was included in this being at G4 level and not possessing " special skills". The Personnel Officer was unaware at the time of the Applicant's dyslexia, as was the Line Manager.

In December 2001 the Applicant was given a letter stating that he was a candidate for redundancy and attended a meeting shortly thereafter at which he was informed that he was going to be made redundant. He informed them that he held a NVQ qualification which had been overlooked and a further meeting was fixed for the 11 December 2001. The Applicant was made redundant nonetheless.

The Applicant made a claim to the Industrial Tribunal that he had been unfairly selected for redundancy and unlawfully discriminated under the GDA 1995.

Decision

The Tribunal took the view that there was no real redundancy here in view of the fact that the Respondent's job still needed to be performed. Nor were they satisfied with the selection procedure and the way it was carried out or the way that the Applicant was given sufficient marks in the selection process. There had been no consultation with the workforce or individual members of the workforce before the assessments were made and totalled and accordingly the Applicant had been unfairly dismissed.

With regard to the disability discrimination claim, the Tribunal concluded that although the company and their records were aware of the Applicant's dyslexia, this was not taken into account by those running the selection procedure. Comparing him with the non dyslexic members of the pool for selection, he was therefore treated less favourably. He was treated less favourably due to the lack of confidence that comes with dyslexia and the marks for the subjective tests were worse than the Applicant deserved because of this impression. He was also entitled to ask for adjustments to be made when his employment was coming to an end in the same way as applying for a job. Due to his inability to be forceful, more careful consultation should have been embarked upon and encouragement given to obtain his point of view.

The Tribunal also commented that as the Applicant's dyslexia was clearly on his records and appraisal, those conducting the process and the Line Manager in particular not being aware, indicated that they had not read the documents carefully enough.

With regard to the award for injury to feelings, the Tribunal were of the view that the Applicant would have been distressed by the manner of the dismissal and the appropriate figure here was £5,500.

He was therefore awarded the following compensation:-

Compensatory Award -£2,641.15
Injury to feelings - £5,500.00
Interest - £184.04
Total Award - £8,325.19

Comments

This case goes to show the need for employers to ensure that a proper redundancy selection procedure is applied and that in particular this takes into account any individual disabilities that those selected for redundancy might have when awarding points to those being considered in the pool for selection and how important it is now to consider those employers who may come within the DDA in selecting them for redundancy.