The Employment Appeal Tribunal (EAT) has held in Hilaire v Luton Borough Council that an employment tribunal was wrong when it found that a disabled employee had not been placed at a substantial disadvantage as a result of having to participate in an interview as part of a redundancy selection process. However, it found that the tribunal was entitled to conclude that, as the employee's disability was not the reason for his non-participation, the duty to make reasonable adjustments did not arise.
The claimant suffered from depression and arthritis. He worked within Luton Borough Council's (LBC's) youth support department which LBC decided to restructure in 2013. Those who were interested in working in the new structure had to apply for a post. The claimant had been off sick since November 2012. He had difficulty with the application process and was given extra time to apply. He was invited to interview in September 2013, but informed LBC that as his sickness absence was ongoing he could not attend and produced a GP certificate signing him off for a further month. He was asked when he would be available to attend an interview but did not respond to that, or to any subsequent reminders. A deadline of 23 September was put in place as thirteen candidates had already been interviewed and were awaiting an outcome. The claimant told LBC that he was too ill to attend and was later dismissed by reason of redundancy.
He claimed, amongst other things, that there had been a failure to make reasonable adjustments and that the requirement for him to participate in an interview was a provision, criterion or practice (PCP) that put him at a substantial disadvantage compared to other people who were not disabled. He argued that, to avoid that disadvantage, LBC should have slotted him into a role without interview.
The EAT found that the claimant had problems with memory, concentration and social interaction, all of which would hinder his ability to participate in the interview. The tribunal had applied the wrong test when considering disadvantage by considering whether the claimant was capable of attending and not considering whether it was more difficult for the claimant to attend because of his disability. It was obvious to the EAT that the problems the claimant experienced would hinder effective participation in the interview when compared with persons who were not disabled.
However, the EAT found that the tribunal had been entitled to conclude that the claimant would not have taken part in the interview in any event, by choice, as in an email to LBC he had stated that "even if I wasn't off sick with work related stress, causing depression, I still would not have attended this interview". It was not an effect of the claimant's disability that prevented him from complying with the PCP, it was a choice that he made because of his belief that the process was just a means of managing and disguising the reason for his dismissal.
The EAT noted that an adjustment, in order to be reasonable, must have the potential to alleviate the effect which creates the disadvantage. Here the evidence was that the claimant suffered from a significant impairment and his recovery would be protracted. Accordingly a short delay to the interview process could not be considered an adjustment. Although slotting the claimant into a role without interview would have alleviated the disadvantage it was a step which would have impacted on others who were part of the process of selection and would not have been a reasonable step for LBC to take.
Take note: Although it was obvious that the claimant in this case experienced problems as a result of his disability which would hinder effective participation in an interview when compared with a non-disabled comparator, it was found that he would not have taken part in the interview in any event. Employers will be under a duty to make reasonable adjustments but this won't be a vehicle for giving a disabled employee an advantage over and above removing the particular disadvantage in question. Here there was no step which was a reasonable step for the employer to have to take as slotting the claimant into the role without interview would have had a considerable impact on the thirteen others who interviewed for the role.
