Being mindful of neurodiversity when selecting employees for redundancy

Employers are reminded of the importance of ensuring they are dealing with redundancy dismissals fairly to avoid or minimise claims for unfair dismissal. Employers should understand neurodiversity in line with their legal obligations, and create a diverse, inclusive, and supportive workplace.

What is neurodiversity?

Neurodiversity refers to the unique way in which our brain functions and interprets information. Most people are ‘neurotypical’ which means that their brain functions in the way that it does for the majority of people. In the UK, it is estimated that around 1 in 7 people (more than 15% of the population) are thought to be neurodiverse. Some examples of neurodiversity are dyslexia, dyspraxia, autism and attention deficit hyperactivity disorder (ADHD).

Generally, workplaces are designed to align with the neurotypical person. This is why reasonable adjustments are needed to allow neurodivergent workers to contribute their talents, skills and perspectives in ways that can directly benefit an organisation. This also contributes towards improved productivity and performance.

Selection criteria 

If a redundancy selection process is necessary, employers must establish a proposed set of objective selection criteria. This includes appropriate weightings reflecting their relative importance, but any such weightings must be justified. The fairness of any dismissal for redundancy is underpinned by adopting a fair basis on which to select.

For the Tribunal to consider the redundancy selection criteria reasonable, it should, as far as possible, be both objective and capable of independent verification (measurable) and should be discussed with the union (if one is recognised). Potentially fair selection criteria include performance and ability, length of service, attendance records and disciplinary records.

Employers must ensure the selection criteria does not discriminate against employees either directly and/or indirectly on any of the protected characteristics specified under the Equality Act 2010.

What happened in a recent case?

This case concerned an employee who worked for a well-known retailer for some 22 years before she was dismissed by reason of redundancy. The claimant was held to have been selected for redundancy because of making errors in her work, not completing work accurately on time, her communications feeling rushed and struggling to balance workload all of which were a result of her dyslexia.

The Tribunal found that the retailer discriminated unlawfully against the claimant, and they should have discounted the effects of the claimant’s disability in her redundancy assessment. Had they done this, they could have retained the best talent as determined following a fair and consistent process.

The retailer’s assumption, without any investigation, that the claimant was either lying or mistaken about the link with her Dyslexia was criticised by the Tribunal. They also held that:

The Respondent’s failure either to accept what the Claimant was saying or seek expert opinion on it was unfair and gave rise to an appearance of closed minds and a bias against the Claimant.

The claimant was awarded over £50,000 and her claim for unfair dismissal was upheld, a costly consequence to the business.

Ways to prevent these types of claims:

  • When applying redundancy selection criteria, employers should be well advised (by way of an occupational health assessment or a letter from the employee’s doctor) to consider whether any of the employees who are to be placed in the redundancy pool have disabilities. For employees with disabilities, employers must ensure that reasonable adjustments are considered, and any disability-related effects are discounted.  
  • Action any requests for reasonable adjustments in accordance with ACAS Guidelines and consider getting medical advice if you need assistance with determining which adjustments should be implemented. 
  • Raise performance issues promptly and where such concerns are found to be impacted as a result of a disability, reasonable adjustments should be made.  
  • Implement robust equal opportunities and diversity, equity and inclusion policies and procedures to outline your organisations expectations.  
  • Provide regular equality and diversity training to all employees, including management/senior leadership and educate on the relevant policies and procedures.  
  • If a complaint is raised by an employee, ensure they are actioned promptly and in strict accordance with the ACAS Code of Practice on Disciplinary and Grievance Procedures.  

If you are unsure about the redundancy criteria you are implementing, or about the process, our employment team can assist/manage the process for you.

Capital Law Employment Investigations

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