Indirect Discrimination?

My boss is adamant that my ill health played “absolutely no part” in the recent decision to drop me from a team I’ve been part of for over ten years.

But my question is, should it have played a part? They are inisting the decision was based only on “qualifications and experience”. But if my ill-health inhibited me from seeking further qualifications, or broadening my experience, then how could I compete with the others?

Is being completely blind to my illness sufficient, or should they be actively taking it into account, and ensuring I’m NOT disadvantaged by it?

They seem to think “We didn’t even consider your illness” is a positive justification!

Are they right?


Hi Tina. I was a health & Safety rep for the union in my work. The first thing you should be looking at is this, Why did they allow you to be part of a team for 10yrs if you where not up to it ? Your illness never got in the way during these years, so what’s new that you can’t do it ? This is questions I would want answered first as the answers may allow you to take it further. Stephen.

Hi Stephen,

Thanks for the reply. They’re not alleging, and never have alleged, it’s performance related.

The team is budgeted for only 2.5 people from 1st April, but there are three of us. We had been led to believe all our posts were safe, as we were only slightly (half a person) over budget, and we expected to be able to make this up by accepting ad hoc bits and pieces from other areas, during the year.

They then had an 11th hour change of plan, and decided you cannot have 2.5 people: it must be either two, OR three. The funding had never been there for three, so naturally it was decided one of us must go. A point-scoring system, based on qualifications and experience, identified that person as me.

I just don’t feel all that comforted by their insistence they didn’t even think about my illness. Surely, that’s the problem? Shouldn’t they have thought about it? Not only that poor health might have impacted my ability to enhance my qualifications and experience, but that I would be disadvantaged when looking for a new post too, because there are a lot of things I couldn’t even consider. I basically need to continue to work from home, which is what I’ve been doing for the last umpteen years.


Hi Tina It’s a complicated issue, have a look at this site (link below) you can phone them and they will give you great advice they are the best out there. Acas | Making working life better for everyone in Britain The site is Acas. Good luck. Stephen.

Hi Tina, sounds like Stephen has given you good advice, I’m afraid I can’t help much, but I know where you are coming from and I agree with every thing you say. I struggle to understand these point scoring things myself, I have to say, although I have never been assessed on one either, they seem very arbitrary to me. I think you also said that one team member was less qualified and junior to you so again that seems very arbitrary, going by that too why was it you. Cheryl:)

I told you ‘they are discriminating;’ ACAS or EHRC; take them to tribunal let them decide.

Got the impession you were satisfied with redundancy; don’t be unless the pay out is £million; lol.


Hi George (and others), Well, I’m not facing redundancy YET, so there is no redundancy decision to contest. It just means I’m more vulnerable to future redundancy decisions, because I’m not assigned to any productive work. As to whether I’d be “satisfied” with it - well, it won’t be a trivial amount (but not millions, of course). I need to get my crystal ball out, and try to work out whether I think I’d still be working in another couple of years anyway. It’s impossible to call, as anyone with MS knows. We don’t know how we’re going to be in the morning, let alone two years. But if I think there’s a chance I’ll be too ill to work sooner, rather than later, I might do well to grab the redundancy with both hands, whether I think it’s “fair” or not. I don’t have any provision for ill-health retirement, so strategically timed redundancy might work out better than collapsing in harness, and leaving with nothing. I haven’t been happy at work for a long time. But that doesn’t mean I was planning to quit just yet. Maybe it’s Fate’s way of telling me? I just dunno… I’m still not going to jump before I’m pushed. But if it happens, I’m not sure I’ll feel sorry. This making any sense? T. x

If I were you, I would want details of the point scoring system that you mention.

What is different about your qualifications and experience compared to the other people in the team?

Your situation sounds a bit like mine, where I work in the IT industry, and we can be unassigned for periods of time.

What are the options for alternative assignments, and are your employers giving you any extra assistance to find a new post given your ill health?

Your employers need to be able to show that any future redundancy decision was not based on your ill health. (similarly with pregnant women) So, no point scoring system based on how many days off sick you have taken.

Hope things work out.

Hi Duncan,

Yes, funnily enough, it is IT. I hope, for your sake, not the same company!

At our place, it’s not uncommon for people - particularly technical staff - to be unassigned from time to time, as another suitable project doesn’t always come up just when the previous one has ended.

But I have had a long-term role (years), NOT assigned to a project, which, perhaps naively, I thought would be a job for life, or at least until I got too ill to work anyway. It’s to do with project auditing, so as long as there are still projects, there will be people needed to audit them.

Unfortunately, though, because it’s always been seen as an overhead - we can’t bill customers directly for it, though they would certainly expect we should be doing it - there’s always been pressure on to reduce costs. Every Spring, we have this same issue: we’re always treated as if our work isn’t really justified, and ideally, oughtn’t to cost anything - even though, deep down, management DO concede they’d be acting negligently, if they didn’t provide an auditing/oversight capability.

'Til now, the annual battle to get more for less has never resulted in having to lose any of the team. So we were all used to it by now, and not especially worried. But this year, it did. Just when I’m ill, and very poorly placed to start again at something else.

I am assured HR has been involved in the point-scoring exercise - as they are required to be. HR, whatever else you think of them, are pretty savvy when it comes to the law - I can’t think the points scoring system itself contravenes the law.

I wouldn’t have thought my qualifications or experience were less than the other two, but I think I joined the group fractionally after them (though it’s hard to remember, going back ten years). So it may literally have turned on “Last in, first out!”


I’m completely out of touch with the case law, but it is probably safe to say that ‘earlier rather than later’ is a good principle for reaching some formal agreed position on the need for, and nature of, reasonable adjustments. In ther words, ideally you wouldn’t be starting from here!

I’m sure you are right about HR having some defensible point-based selection system. But it is how that system is applied that can sometimes trip people up - for instance, last-in-first-out is a perfectly defensible principle, as long as it is applied consistently, and not just opportunistically to get rid of someone! So it might still be worth pressing a little harder on their criteria - make HR work for a living, at least.