Reasonable Adjustments Should Not Be Used to Create an Advantage
Mr Hilaire was employed by Luton Borough Council, who were going through a restructuring process which would result in redundancies.
Hilaire v Luton Borough Council
As part of the restructuring process, Mr Hilaire had to apply and be interviewed for a new role. Mr Hilaire was disabled for the purposes of the Equality Act 2010 as he suffered with depression and arthritis.
Mr Hilaire told his employer that he was too unwell to attend and provided a fit note. Several other candidates had already been interviewed and were waiting for the Council to make a decision. The Council decided to proceed with the appointment and dismissed Mr Hilaire without an interview.
Mr Hilaire subsequently brought a claim for failure to make reasonable adjustments. He argued that the requirement to attend the interview amounted to a provision, criterion or practice (PCP) that put him at a substantial disadvantage and the Council should have given him a role without having to go through an interview process by way of reasonable adjustment.
No Substantial Disadvantage
The Employment Tribunal (ET) rejected Mr Hilaire's claim and held that there was no substantial disadvantage imposed on Mr Hilaire and that he could have attended the interview if he wanted to. Mr Hilaire appealed to the Employment Appeal Tribunal (EAT).
What Did the EAT Decide?
The EAT dismissed the appeal and found that the reason for Mr Hilaire's refusal to participate in the interview process was not due to his disability, but rather that he had lost confidence in his employer as he believed the redundancy was a sham.
Whilst the EAT was critical of elements of the ET's decision, it noted that Mr Hilaire's suggestion that he should have been given a role without an interview was wrong. The EAT commented that a reasonable adjustment is not "a vehicle for giving an advantage over and above removing the particular disadvantage".
The EAT found no other reasonable steps that could have been taken by the employer in this case considering the potential impact on other employees in the redundancy process.
What Can Employers Learn From the Decision?
It is always important for employers to consider the effects of a disability and assess how an employee may have difficulty in complying with a particular PCP compared to those who do not have a disability.
On the facts of this case not only did the employer need to consider the needs of the disabled individual but also balance this with the need to progress their restructuring process.
The case also illustrates the purpose of the law around reasonable adjustments. The obligation exists to remove disadvantage, not provide advantages over and above that.
