In Hilaire v Luton Borough Council, the employer conducted a redundancy exercise in which employees who were at risk of redundancy could apply for posts in the new organisational structure. They would then attend a ring-fenced interview for the relevant post. Mr Hilaire was disabled because of his depression. He argued that the requirement to attend an interview put him at a substantial disadvantage because of his disability. It would have been a reasonable adjustment to offer him a post in the new structure without requiring him to attend an interview.
Contrary to the tribunal’s view, the EAT found that the requirement to attend an interview was a provision, criterion or practice (PCP) that put him at a disadvantage because of his disability. The medical evidence showed that he had problems with his memory, concentration and social interaction, which would at least hinder his participation in the interview process. The issue was not simply whether he could attend an interview as the tribunal thought, but whether he could participate fully in it. The tribunal should have recognised that and considered whether the limitations on his ability to participate were substantial in the sense of being more than minor or trivial. However, as the evidence showed that the employee would not have attended an interview anyway, for reasons unconnected with his disability, his claim failed.
The EAT nonetheless went on to consider what would have amounted to reasonable adjustments if Mr Hilaire had been able to demonstrate substantial disadvantage because of his disability. An adjustment must have the potential to alleviate the effect that creates the disadvantage. In this case, it was not a reasonable adjustment simply to delay the interview (as the employer had done) because this would not in itself have allowed the employee to participate in it, given the long term nature of his condition.
Mr Hilaire’s argument was that he should have been slotted in to a role in the new structure without being required to interview for it. The tribunal had heard evidence that this was a collective process involving at least thirteen employees and that there was a time element to the decisions to be made. It was entitled to accept the manager’s view that there were no other adjustments that could have been made to accommodate the employee. Although slotting him in to a new role would have removed the disadvantage to him, it would have impacted the other employees involved in the selection process. A reasonable adjustment is not designed to give employees an advantage over and above removing the particular disadvantage caused by the relevant PCP. The tribunal was entitled to find that on the facts of this case slotting the employee in to the new structure was not a reasonable step for the employer to have to take.
Authored by Jo Broadbent and Stefan Martin.