394: Placing a disabled employee into new structure without interview was not a reasonable adjustment

The Employment Appeal Tribunal’s (EAT) recent decision in Hilaire v Luton Borough Council highlights that adjustments must be objectively reasonable and only need to remove the particular disadvantage caused by a provision, criterion or practice (PCP). There is no need to give an advantage beyond the removing the particular disadvantage caused by the PCP. However, this can be hard to assess in practice.

In this recent case, the EAT ruled that placing a disabled employee into a new organisational structure was not a reasonable step because of the impact on other employees.

Mr Hilaire worked in the youth support department of Luton Borough Council. He was considered a disabled employee due to his arthritis and depression. As part of a reorganisation and redundancy exercise, Mr Hilaire was required to apply and interview for a post in the new structure under a procedure agreed with unions, who had objected to the use of redundancy selection criteria. Due to his ill-health and absence during the consultation process, Mr Hilaire was given extra time and support to complete the application form. He was invited for interview but could not attend as he was signed off sick for a further month. Since thirteen candidates had been interviewed and were waiting for a response, he was given a deadline. Mr Hilaire responded that he was too ill to attend an interview and was subsequently dismissed by reason of redundancy.

Mr Hilaire brought various claims in the Employment Tribunal, including a reasonable adjustments claim. He argued that the requirement to attend an interview was a PCP that put him at a substantial disadvantage because of his disability, and that a reasonable adjustment would have been to place him into the new structure without an interview. However, the Tribunal held that there was no disadvantage since he could have attended an interview if he had wanted to and that, other than delaying the interview, there were no other steps that it would have been reasonable for the Council to take.

On appeal, the EAT held that the Tribunal was wrong to focus simply on the requirement to attend for interview, rather than considering whether Mr Hilaire could participate fully in the whole interview process. Medical evidence showed that he would have been hindered by difficulties with concentration, memory and social interaction. Nonetheless, Mr Hilaire had given clear evidence that he would not have attended an interview for reasons unconnected with his disability and had attended other meetings whilst off sick. His claim therefore failed on causation.

Helpfully, the EAT went on to consider what would have amounted to reasonable adjustments in this case. Delaying the interview, as the Council had done, did not enable Mr Hilaire to participate in the process because of his long-term ill health. Placing him into a new role would have alleviated his disadvantage but would also have adversely impacted thirteen other employees. There were therefore no steps that it would have been reasonable for the Council to have to take. It should also be noted that although in some circumstances adopting a different selection method might be a reasonable adjustment, it was not feasible here as the procedure had been agreed with unions

This case provides a timely reminder that an employer is entitled to balance the needs of a disabled employee with its own need to progress and implement proposed restructuring as well as the interests of other employees involved in the redundancy process.

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