Reasonable adjustments not intended to give disabled employees an advantage
An Employment Appeal Tribunal (EAT) had to consider whether an adjustment in a redundancy exercise, which had the effect of giving an advantage to a disabled employees over their colleagues, was reasonable.
In the case of Hilaire v Luton Borough Council, as part of redundancy consultation, the employer asked at-risk employees to apply for available roles within their new structure and confirmed an interview process would then take place. An employee missed the application deadline due to sickness absence but was allowed an extension and was offered further support.
Following his application, and as per the agreed process, the employee was invited to an interview. However, he submitted a new fit note, extending his sickness absence, and indicated that he would not be attending the interview. The employer tried several times to reschedule the interview but had no response so eventually had to set a deadline for it since 13 other employees were involved in the process and were awaiting an outcome.
The employee refused to attend any interview and confirmed that, even if he hadn’t been off sick, he wouldn’t have engaged with the process as he believed HR was conspiring to dismiss him because of his sickness absence. He further argued that his disability (he had depression so struggled with memory, concentration and social interaction) would put him at a substantial disadvantage and contributed to his inability to attend or take part in an interview. Instead, he requested that he should be automatically given a new position in the new structure, saying this “slotting in” would be a reasonable adjustment
When this wasn’t allowed, he raised a claim for disability discrimination, on the basis that the employer failed in their duty to make reasonable adjustments. The EAT found that, although slotting him into a new role would have removed the disadvantage to him, it would have impacted the other employees involved in the selection process.
It highlighted that a reasonable adjustment is not designed to give employees an advantage beyond removing the disadvantage they face as a result of their disability which is caused by the relevant PCP, saying “making an adjustment is not a vehicle for giving any advantage over and above removing the particular disadvantage.” As a result, the EAT concluded it was not reasonable or necessary for the employer to do so.
All employers will likely be familiar with implanting reasonable adjustments for employees, but confusion often arises over the reasonableness of them. This case provides a useful overview of the limit employers must go to when exploring their requirement to make reasonable adjustments for disabled members of staff.
An effective reasonable adjustment in this case may have instead been to allow the employee to provide a written submission to the interview questions. However, as highlighted by the EAT, a large contributor to the dismissal of the claim was based on the fact that the employee would not have attended the interview even if he didn’t have medical limitations. As such, it was not necessary to exhaust all other potential adjustments to support the employee through the interview process.