The EAT has held that the duty to make reasonable adjustments did not arise where a disabled employee refused to take part in an interview for reasons unconnected to his disability. The EAT also commented that reasonable adjustments are not intended to create an advantage over and above removing a particular disadvantage.
THE FACTS
Mr Hilaire was employed by Luton Borough Council in its youth support department. He suffered from depression and arthritis, which amounted to disabilities.
The Council went through a transformation process to restructure the youth support department. As part of this process, Mr Hilaire was required to apply and interview for a role in the new structure. Mr Hilaire had difficulties with the application process because of his disabilities, and he was allowed extra time and given support with his application. He was invited to an interview, but he provided a sick note from his GP, stating that he would be unable to attend. He was asked when he would be available to attend, and reminders were sent to him when he did not respond. Thirteen other candidates had been interviewed and were waiting for the decision, so the Council decided to put in place a deadline for the postponed interview. Three days before the deadline, Mr Hilaire told the Council that he was too ill to attend the interview, and he was subsequently made redundant.
Mr Hilaire claimed in the employment tribunal that (among other things) the Council had failed in its duty to make reasonable adjustments. He argued that the requirement to participate in an interview was a provision, criterion or practice (a “PCP”) that put him at a substantial disadvantage compared to people who were not disabled and that the Council should have made adjustments to avoid that disadvantage. These adjustments included slotting him into a role without an interview.
The employment tribunal dismissed Mr Hilaire’s claim. It held that he was not placed at a substantial disadvantage by the PCP and that he was able to attend an interview had he wanted to, but he had not wanted to. It also found that, other than delaying the interview (which it had already done) it would not have been reasonable for the Council to have made any other adjustments.
Mr Hilaire appealed to the EAT which dismissed his appeal.
The EAT found that the tribunal had taken too binary an approach to the question of whether or not Mr Hilaire could participate in the interview. The tribunal had found that Mr Hilaire had problems with memory, concentration and social interaction, which would hinder his ability to participate in the interview. and the tribunal should have considered whether his limitation on his ability was more than minor or trivial.
However, on the aspect of whether his disability had caused the disadvantage the tribunal had reached the right decision. The tribunal had been entitled to find that the real reason for Mr Hilaire’s non-attendance was not his disability, but a choice not to attend the interview for reasons unconnected with his disabilities. This was supported by an email from Mr Hilaire in which he said “Even if I wasn’t off sick with work related stress, causing depression, I still would not have attended this interview….the reason for this is, I have emails relating to me with discriminatory content….”. His choice not to attend was not related to his disability. His reasonable adjustments claim therefore failed.
Although they did not need to in order to determine the claim, the EAT went onto consider whether the adjustments Mr Hilaire had put forward would have been reasonable. To avoid a disadvantage, the adjustment must have the potential to alleviate the effect which creates the comparative disadvantage for the disabled person. In this case, any adjustment that gave Mr Hilaire sufficient time to recover from the effects that would hinder his participation in an interview could be a reasonable adjustment. However, the evidence before the tribunal was that Mr Hilaire’s recovery would be protracted. The EAT therefore concluded that the short delay that was applied to the date of the interview could not be considered an adjustment in the circumstances. Nevertheless, the tribunal’s decision that there was no other reasonable step that the employer could take was based on evidence. Among other things, the selection process applied to at least thirteen employees and there was a time element to the decisions that had to be made. The EAT noted that the question of reasonableness is an objective test. Slotting into a role without interview was, objectively, a step which would have alleviated Mr Hilaire’s disadvantage. However, in this case it was a step which would have impacted thirteen others who were part of the selection process, and given the surrounding circumstances and impact on other employees, no step, including slotting in, was a reasonable adjustment. Reasonable adjustments are not intended to be vehicles for “giving an advantage over and above removing the particular disadvantage”.
WHAT DOES THIS MEAN FOR EMPLOYERS?
This case shows that that adjustments sought must be objectively reasonable. If the adjustment gives a disabled employee an advantage over and above alleviating the disadvantage presented by a PCP, the adjustment is not likely to be reasonable. This will be a fine line, but it is helpful that the impact on other employees can be considered as part of this assessment. In other circumstances, such as where there is a vacancy to be filled, slotting the employee into the role may constitute a reasonable adjustment.
