In Hilaire v Luton Borough Council, the Employment Appeal Tribunal (EAT) concluded that it was not a reasonable adjustment to offer a disabled employee a position in a new structure as part of a redundancy exercise without the need for an interview. While the employee was at a substantial disadvantage as a result of having to take part in an interview, the proposed adjustments would have had an unfair impact on the other staff in the selection process.
The Facts
Mr Hilaire, who was employed by the Council, suffered from depression. Following a restructuring of the Council, he, along with every individual involved in the redundancy consultation, was required to apply for a new role and attend an interview to avoid potential redundancy. Owing to his disability, he was given extra time and support to complete his application.
However, Mr Hilaire did not attend the interview or provide a fit note stating that he could not attend. He also failed to reply to correspondence enquiring when he would be available to attend. Thirteen candidates for the role had already been interviewed so the Council fixed a deadline for Mr Hilaire’s delayed interview. Three days before this date, he advised the Council that he was too ill to attend. As a result, he was not allocated a role in the new structure and was dismissed by reason of redundancy.
The Claim
Mr Hilaire subsequently brought a claim to the employment tribunal, arguing that the requirement to attend an interview was a provision, criterion or practice (PCP), which had put him at a substantial disadvantage due to his disability (his depression). He also argued, his employer was required to make a reasonable adjustment for him, which in this case should have been giving him a role in the new structure without the need for an interview.
The Tribunal’s View
The employment tribunal disagreed, finding that the relevant PCP, i.e. requiring Mr Hilaire to attend an interview, did not place him at a disadvantage as he could have engaged with the process if he had wanted to do so. Unfortunately, he chose not to attend as he believed the managers were conspiring to dismiss him.
What Did The EAT Conclude?
The EAT disagreed, holding that requiring employees to attend a job interview did constitute a PCP that put Mr Hilaire at a disadvantage due to his disability. There was clear medical evidence that his disability would hinder his participation in an interview.
However, it agreed that the tribunal had been entitled to dismiss the claim. While reasonable adjustments should remove the particular disadvantage to an employee with a disability, they should not give them an advantage over other employees. Forgoing the requirement for an interview for Mr Hilaire might have alleviated the disadvantage to him, but it would have been unfair to the thirteen other employees in the redundancy pool and would therefore not be a reasonable adjustment to make.
Takeaway for Employers
This decision makes it clear that when employers are considering what reasonable adjustments to make, they have to try and ensure that the disadvantage to the disabled employee is removed; but not to the extent that the disabled employee is given an advantage over and above their fellow employees.
If you have a question regarding disability discrimination, please contact a member of our employment team.
