Reasonable adjustments: how far do you need to go?

Peninsula Team

December 08 2022

The EAT holds that making reasonable adjustments is not about giving an advantage over other non-disabled employees

In Hilaire v Luton Borough Council, the respondent organisation undertook a redundancy exercise in which employees had to apply for a post in the new organisational structure. The claimant missed this deadline due to ill health absence but was subsequently invited to an interview.

They did not attend the interview due to an extension of their sickness absence resulting from moderately severe depression.

They made it clear, via email, that even had they not been off sick they would not have engaged with the interview process. This was due to emails that they claimed contained discriminatory content about them, from lower, middle and senior management, as well as HR, conspiring to dismiss them for their sickness absence, which they stated showed a lack of support.

A claim was raised for disability discrimination, on the basis that the requirement to attend an interview as part of the redundancy process put them at a “substantial disadvantage” because of their disability, and the respondent had failed in its duty to make a reasonable adjustment.

In this instance, the claimant argued that adjustment would be to simply “slot” them into a vacancy in the new structure.

The ET identified the claimant’s disability impacted on their day-to-day activities in various ways including lethargy/excessive sleep; social disengagement including a wish to avoid people; lack of motivation; problems with memory and concentration; persistent low mood and difficulties with social interactions.

It was held that the requirement to attend the interview was a provision, criterion or practice (PCP) but that this did not create a substantial disadvantage for the claimant because their reason for not attending the interview was not because they could not, rather that they did not want to.  Accordingly, the discrimination claim failed.

On appeal, the Employment Appeal Tribunal (EAT) held that the PCP did put the claimant at a disadvantage because of their disability, as the symptoms would have hindered their participation fully in the interview process.

The question was not whether or not they could attend, but whether if they did do so, would they be able to participate on the same level as others involved in the process who were not disabled.

Nevertheless, the EAT acknowledged that it was clear that the claimant would not have attended the interview even without the medical limitations resulting from the disability, and the claim therefore failed.

The EAT went onto consider what would have been a reasonable adjustment, and whether “slotting” in the claimant as suggested would have been reasonable. The purpose of a reasonable adjustment was to “…avoid or alleviate the effect which creates the comparative disadvantage (with non-disabled employees)”. Whilst it was accepted that “slotting in” would have alleviated the disadvantage, it would have also impacted others involved in the redundancy process. On this point, the EAT said:

“Making an adjustment is not a vehicle for giving any advantage over above removing the particular disadvantage”.

Overall, therefore, the EAT confirmed the findings of the ET, and held that it was entitled to conclude that there was no reasonable adjustment possible.

If you have more questions on making reasonable adjustments for disabled employees, visit BrAInbox today where you can find answers to questions like What's the legal test a tribunal will use to assess a claim of failure to make reasonable adjustments for disability?

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