Understanding Disability Discrimination at Work During Redundancy

Protect Your Position Before Redundancy Is Finalised

Redundancy can be lawful when there is a real business reason for reducing roles. Even so, a genuine need to cut costs or restructure does not allow a process that puts disabled workers at an unfair disadvantage. We often see concerns arise in autumn, when employers may be planning for year-end changes or a new financial year.

The Equality Act 2010 still applies throughout a redundancy process. Whether you are an employee worried about your selection or an employer planning a restructure, it helps to address possible disability discrimination at work early. Below, we explain when a condition may have legal protection, how fair selection should work, what reasonable adjustments may look like, and why good records and timely specialist advice matter.

Know When a Condition Has Legal Protection

Under the Equality Act 2010, a disability is a physical or mental impairment that has a substantial and long-term negative effect on normal day-to-day activities. “Substantial” means more than minor or trivial. “Long term” will usually mean the effect has lasted, or is likely to last, for at least 12 months.

Some conditions receive automatic protection from the point of diagnosis, including cancer, multiple sclerosis and HIV. Other conditions can also meet the legal definition, depending on how they affect the person. This may include mental health conditions, neurodivergence, chronic pain, long Covid, fluctuating conditions and serious illnesses.

For employees, we recommend being clear with your employer about your condition and the support that could help, where you feel able to do so. Keep this in writing where possible. For employers, it is risky to dismiss a condition simply because symptoms are not visible or someone appears to be coping well.

Before making redundancy decisions, employers should consider:

• What they knew about the employee’s condition  

• What they reasonably ought to have known  

• How the condition affects the person in practice  

• Whether medical or occupational health input would help  

The focus should be on the impact of the condition, rather than assumptions about a diagnosis or a person’s future ability to work.

Recognise Disability Discrimination at Work in Selection

Disability discrimination at work can happen at any point in a redundancy exercise. It can affect who is placed in the redundancy pool, how workers are scored, the quality of consultation, access to alternative jobs and the final dismissal decision. A business need to reduce headcount does not excuse discriminatory treatment.

The legal risks can take several forms. Direct discrimination means treating someone less favourably because of disability. Discrimination arising from disability can involve unfavourable treatment because of something linked to the disability, such as disability-related absence. Indirect discrimination can arise where a rule applies to everyone but disadvantages disabled workers. There may also be a failure to make reasonable adjustments or victimisation after someone raises concerns.

Warning signs can include:

• Marking down disability-related absence in a scoring exercise  

• Penalising reduced hours that relate to an impairment  

• Using attendance measures without considering adjustments  

• Excluding someone from redeployment because of assumptions about their health  

• Treating an employee badly after they raise an equality concern  

If you are an employee, ask for the scoring criteria, your scores, consultation notes and a clear explanation of why you were selected. If you are an employer, use criteria that are objective and relevant to the role. Decision-makers should understand the risk of unconscious bias, and the reasons for each scoring factor should be recorded carefully.

Run a Fair Process with Reasonable Adjustments

Reasonable adjustments are not limited to an employee’s usual day-to-day role. They may also be needed during consultation meetings, selection exercises, interviews for alternative roles and discussions about dismissal. The right adjustment depends on the person, their role and the barrier created by the process.

A fair process is not always one where everybody receives exactly the same treatment. Sometimes fairness means changing part of the process so that a disabled employee has a proper chance to understand, take part and respond.

Adjustments might include:

• Extra time to respond to consultation proposals  

• Documents in an accessible format  

• Remote meetings or shorter meetings with breaks  

• Allowing a support person to attend where appropriate  

• Adjusting assessment methods or meeting times around treatment and fatigue  

Employers should ask what would help rather than guessing. Occupational health advice may be useful, but it should not replace a thoughtful discussion with the employee. Requests, decisions and reasons should all be recorded.

Employees can help by making adjustment requests clearly in writing. Explain the barrier you face and how the requested change would reduce that disadvantage. That record may become important if disability discrimination at work is later disputed.

Act Quickly to Preserve Your Rights and Evidence

Redundancy can move quickly, and it is easy to focus only on the next meeting or deadline. Still, good records can make a real difference. We suggest keeping copies of consultation invitations, scoring sheets, emails, meeting notes, medical information and any requests for adjustments.

It can also help to make a simple timeline. Note dates, comments, changes in treatment and decisions that suggest your disability may have affected the process. Keep the record factual and as close to the event as possible.

Concerns may be raised informally or through a formal grievance while consultation is still ongoing. Taking part in consultation does not mean you agree that the process is fair. Similarly, accepting a redundancy payment does not automatically mean you should avoid getting advice, especially if you are asked to sign a settlement agreement. Independent legal advice is normally needed for a settlement agreement to be legally binding.

Most Employment Tribunal discrimination claims have a short deadline, usually three months less one day from the act complained of. The facts can affect the date, and Acas Early Conciliation is generally required before a Tribunal claim. Employers should treat complaints seriously, investigate them fairly and avoid any retaliatory treatment after equality issues are raised.

Find the Right Employment Law Support Today

When disability, absence, health information and redundancy overlap, early specialist guidance can help both sides understand the risks before positions become fixed. Employees may need support in reviewing selection decisions, adjustment requests or settlement terms. Employers may need help testing whether their process is fair before dismissals are confirmed.

Redundancy decisions should rest on genuine business needs and fair evidence, not assumptions about disability, absence or future capability. Keeping clear records, asking sensible questions and dealing with concerns promptly can help protect everyone involved before important legal deadlines pass.

Get Clear Advice for Your Next Steps

If you are concerned about disability discrimination at work, our employment solicitors can help you understand your options and prepare a considered response. Match My Solicitor connects employees and employers with legal support suited to their circumstances. Contact us to discuss your situation and find the right solicitor.