Slotting in

Although employers are required to make reasonable adjustments for disabled workers in certain circumstances, the Employment Appeal Tribunal (EAT) held in Hilaire v Luton Borough Council that it was not a reasonable adjustment to require the council to slot Mr Hilaire into a new role.

Basic facts

Mr Hilaire, who worked in the council’s youth support department, suffered from moderately severe depression which was partly caused by his arthritis. Due to a council reorganisation, a redundancy situation arose and 13 members of staff - including Mr Hilaire - were told that they had to apply for one of 4.9 full-time posts available. As he had been off work due to ill health, the council extended the deadline for him and gave him assistance with filling in the application form.

He was then invited to an interview on 4 September 2013 but, due to ill health, he was unable to attend. However, as he failed to give the council an indication when he might be fit enough to attend an interview, it set a deadline of 23 September in order to give the other candidates some certainty as to when the process would be completed. The council considered, but rejected, the possibility of an alternative to interview as the process had already been agreed with the unions. Mr Hilaire told the council on 20 September that he was still too ill to attend. He then sent a further email stating that even if he had not been off sick, he would still not have attended because he believed that managers were “conspiring” to dismiss him.

Following his dismissal for redundancy, he lodged tribunal proceedings arguing that the council had failed to make reasonable adjustments (such as slotting him into a new post), contrary to section 20(3) of the Equality Act 2010.

Relevant law

Section 20(3) states that where a provision, criterion or practice (PCP) puts a disabled person at a “substantial disadvantage” when compared with people who are not disabled, employers must take such steps as it is reasonable to take to avoid that disadvantage.

Tribunal decision

Although the council’s requirement for Mr Hilaire to attend an interview amounted to a PCP, the tribunal concluded that he would not have attended in any event because he believed there was a conspiracy against him.

The PCP had not, therefore, placed him at a disadvantage as he was able to engage with the process had he “wanted to”. The reality was that “[h]e did not want to”. Nor was it reasonable to expect the council to make any adjustments other than the ones it had already made.

EAT decision

The EAT held that the tribunal had applied the wrong test as it had only considered whether Mr Hilaire could take part in the interview and not whether his disability would have made it more difficult for him to attend compared to someone who was not disabled. Given that he had problems with memory and concentration, it was obvious that these problems would have put him at a disadvantage.

However, the tribunal was entitled to conclude that Mr Hilaire was not substantially disadvantaged by the PCP as that was not the real reason for his non-attendance. The real reason was because he believed that the whole process was just a way of getting rid of him.

Finally, the EAT considered whether there were any other steps that the council could reasonably have taken, such as slotting him into a role. Although this would have alleviated any disadvantage that he might suffer, it would have impacted on all the other members of staff. As the EAT pointed out: “[m]aking a reasonable adjustment is not a vehicle for giving an advantage over and above removing the particular disadvantage”.

As there was no further reasonable steps that the council could have taken, the EAT dismissed the appeal.

Comment

There are two key takeaways from this case to note when supporting a disabled employee who is seeking reasonable adjustments. Firstly, having identified a PCP that is placing them at a disadvantage, the employee should be careful to not then undermine their position by suggesting that something else is the real reason for why they cannot do what their employer is asking of them. Secondly, where possible, the employee should seek reasonable adjustments which minimally impact upon or disadvantage others.