EAT Case: Hilaire v Luton Borough Council – clarification on Disability Discrimination and Reasonable Adjustments
The Employment Appeal Tribunal has recently handed down an extremely useful decision that provides clear practical guidance for employers in relation to reasonable adjustments and disability cases. To learn more about the outcome of this decision, see the Judgement on Hilaire v Luton Borough Council.
The facts of the case involved an employee, H, who suffered from depression and arthritis. The company went through a change and restructure process and for those wanting to work in the new structure applications were required and there would be interviews.
H had been off sick through the process and complained that he struggled with the application process and had not been given enough support whilst off sick.
H was given extra time and help to prepare his application form. He was invited to interview however he told LBC that he would be off sick and that he could not attend any meetings or interviews.
Other candidates had already been interviewed and the process needed to move on, so LBC put a deadline in place for the interview to take place. H refused. Ultimately, he was dismissed by reason of redundancy.
H claimed disability discrimination stating that there had been a failure to make reasonable adjustments.
His claim was that the requirement for him to participate in an interview was a PCP (Provision, Criterion or Practice) and that it put him at a substantial disadvantage to other applications because of the difficulty he faced engaging in the process.
The EAT found that H’s disability caused him issues with memory, concentration and social interaction which would have hindered his ability to participate in the interview. However, H’s claim in respect of reasonable adjustment failed.
There were 2 key take aways from the EAT’s decision.
Firstly, it found that H would not have taken part in the interview in any event, and that his refusal was unrelated to his disability. The EAT referred to an email sent from H where he stated ‘even if I wasn’t off sick…..I still would not have attended this interview’.
It was therefore not H’s disability that prevented him from complying with the PCP, it was his belief that the process was a disguised means of managing him out.
Helpfully the EAT also addressed reasonableness. Whilst H’s claim failed on the fact that it was found that his disability didn’t enter into his decision to not attend the interview, the comments made about reasonableness are helpful for employers when considering this issue.
The EAT reminded us that to have met the duty to provide reasonable adjustments, it is not enough just to provide adjustments, to meet the statutory definition the adjustments must actually avoid or alleviate the disadvantage.
It is not uncommon to come across employers who can demonstrate a variety of offered adjustments, however the tribunal will not be distracted by anything offered that is just a ‘smokescreen’. Therefore, employers who may have provided a litany of adjustments in order to appear accommodating do not satisfy the test. If the adjustment doesn’t alleviate the disadvantage in real terms, it does not meet the definition of a reasonable adjustment under the Act.
In H’s case the EAT found that allowing additional time for H to take part in the interview could potentially have been a reasonable adjustment, however on the facts his recovery was cited to be so protracted that a short-term delay made no difference to the hindrance suffered by H, and the delay therefore was not a reasonable adjustment.
The EAT did however conclude that there were no other reasonable steps that the employer could have taken in the circumstances. 13 other candidates had been interviewed and were waiting for an outcome, it was not reasonable to delay indefinitely.
Interestingly the EAT also stated that whilst in theory slotting H straight into the role without interview would be an adjustment that would have alleviated the disadvantage, it would have disproportionately disadvantaged the other candidates and it was therefore not a reasonable adjustment.
Applying a reasonable adjustment does not mean that an advantage over and above the removal of a particular disadvantage needs to be put in place.
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If you have any questions relating to your workforce, long term sickness absence or disability discrimination, please contact Elissa Thursfield for advice. Alternatively, you can get in touch online or visit our employment lawyers page for more information.