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Tags: case update, disability discrimination, Hilaire v Luton Borough Council, redundancy, unfair dismissal
Categories: Employment Law
Background: If an employee is disabled, an employer will have a duty to make reasonable adjustments to any provision, criterion or practice (PCP) (such as formal or informal policies and rules) which places that disabled employee at a substantial disadvantage in comparison with those who are not disabled.
Employers are only required to make adjustments that are reasonable. Factors such as the cost and practicability of making an adjustment and the resources available to the employer may be relevant in deciding what is reasonable.
Facts: The employee, Mr Hilaire, was disabled (he suffered from depression and arthritis). His employer, Luton Borough Council (the ‘Council’), carried out a restructuring and said that staff who were at risk of redundancy could apply for posts in the new organisational structure.
Mr Hilaire was one of the employee’s at risk of redundancy. Due to his disability, he was given extra time by the Council to apply for one of the new posts as well as help in completing his application form. However, when Mr Hilaire was asked by the Council to attend an interview, he said that he was too ill to attend (and provided a medical certificate). He was asked more than once when he would be able to attend but he did not reply. A deadline was imposed so that the restructure process could be completed (13 candidates had already been interviewed and were awaiting a response). Mr Hilaire again told his employer he was too ill to attend and he was later dismissed for redundancy.
Mr Hilaire brought several Tribunal claims, one of which was that the Council had failed in its duty to make reasonable adjustments and so discriminated against him on grounds of his disability. He argued that the requirement to participate in an interview was 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.
Tribunal decision
The Tribunal dismissed Mr Hilaire’s claim. It found that although the requirement for Mr Hilaire to attend an interview was a PCP, this did not place him at a disadvantage – he did not attend the interview because he did not want to (because he believed his managers were conspiring to sack him) not because he was prevented from doing so by his disability.
Mr Hilaire appealed.
EAT decision
The EAT dismissed the appeal and found that Mr Hilaire had not been discriminated against. However, unlike the Tribunal, the EAT held that the PCP of requiring a disabled employee to attend an interview did amount to a substantial disadvantage (as it was more difficult to attend because of the disability).
Nevertheless, the PCP did not cause the disadvantage in this case as Mr Hilaire had decided not to attend the interview due to his loss of confidence in his employer, rather than his disability. 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 reasonable adjustments claim therefore failed.
The EAT also considered the concept of reasonable adjustments. It helpfully reiterated that the purpose of a reasonable adjustment is purely to remove the effect of the relative disadvantage. It is not to put the disabled person ahead of their non-disabled colleagues. Mr Hilaire’s assertion that he should have simply been given a role in the new structure without any interview at all was not reasonable, especially given the other 13 employees that had gone through the interview process. Any further delay to the process would have had an unreasonable effect on them as they were waiting for the results. The EAT held there were not any further reasonable adjustments that the employer could have made, in this particular set of circumstances.
Implications: This case is a helpful reminder that adjustments do need to be objectively reasonable and the factual context is important in this respect.
Employers should take a comparative approach by reference to non-disabled colleagues who are also subject to the PCP. The purpose of an adjustment is to remove (or alleviate) the disadvantage presented by a PCP. 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. Particularly if it will favour the disabled employee over everyone else.
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