Making reasonable adjustments: what is reasonable?
Deciding whether or not an adjustment is reasonable can be challenging for employers. In Hilaire v Luton Borough Council, the Employment Appeal Tribunal (EAT) considered whether there was a duty to make reasonable adjustments where a disabled employee refused to participate in an interview which formed part of a redundancy process when the reason for refusal was unconnected to the employee’s disability.
Background
There was a redundancy situation at the Council and part of this involved a restructuring of the Youth Support Department in which Mr Hilaire worked. As part of the process, those interested in working in the new structure were required to apply and interview for a post.
Mr Hilaire was disabled, suffering from moderately severe depression and arthritis. Amongst other things, the side effects of Mr Hilaire’s depression were memory and concentration problems and persistent difficulty in normal social interaction.
During the restructure process, Mr Hilaire was supported in submitting his application for a post in the new structure and given an extension to the application deadline. However, he was then signed off sick by his GP.
The Council contacted Mr Hilaire and asked him to give an indication of when he might be able to attend an interview, but he did not respond. The Council had interviewed 13 other applicants who were awaiting a response and therefore imposed a deadline on Mr Hilaire to attend an interview. Shortly before the deadline, Mr Hilaire informed the Council that he was too ill to attend the interview. He was later dismissed by reason of redundancy.
Employment Tribunal Decision
Mr Hilaire brought a claim for failure to make reasonable adjustments.
He stated that the requirement to attend an interview was a PCP that put him at a substantial disadvantage and it would have been a reasonable adjustment to offer him the post without requiring him to attend an interview.
The Employment Tribunal dismissed his claim. It concluded that the Council had applied a PCP of requiring Mr Hilaire to attend the interview. However, it found that Mr Hilaire was able to engage with the process if he wanted to, and in this case, he did not want to. Mr Hilaire had sent an email to the Council stating that even if he was not off sick with work-related stress, he would still not have attended the interview as he believed that the managers were conspiring to dismiss him due to his sickness. In light of this evidence, the Employment Tribunal found that Mr Hilaire was not placed at a disadvantage by the Council requiring him to attend the interview, as he had no intention of attending.
Employment Appeal Tribunal decision
On appeal, the EAT found that the Employment Tribunal had erred by failing to consider how Mr Hilaire’s disability could affect his ability to participate in the interview, rather than just attend the interview. The Equality Act 2010 required the Employment Tribunal to consider the effects of Mr Hilaire’s disability that would have made the interview more difficult for him in comparison to other employees who were not disabled. The EAT also noted that in order for delay to be an adjustment, it would have to allow sufficient time for the effects hindering participation in the interview to diminish to the extent where they were only trivial. Postponing Mr Hilaire’s interview for a short period of time could not amount to a reasonable adjustment as it would not alleviate the disadvantage for him.
However, the EAT concluded that the Employment Tribunal was correct in its finding that Mr Hilaire would not have taken part in the interview in any event and there was supporting evidence that this was for reasons unconnected with the disability. It noted that causation is an essential element of disadvantage. Where the employee would not have taken part in the interview for reasons unconnected with disability, as was the case here, there is no causation. The substantial disadvantage element was therefore not made out.
The EAT noted that slotting Mr Hilaire into one of the new posts would have alleviated the disadvantage but would have also impacted on others in the redundancy process. It held that making an adjustment is not a vehicle for giving any advantage over and above removing the particular disadvantage. In light of this, a vacancy could be filled as a reasonable step, however, in this particular case, and considering the impact on other employees, the Employment Tribunal was entitled to conclude that there were no other steps for the Council to have to take.
The appeal was dismissed.
Comment
This case highlights the need for a reason connected with the employee’s disability to be the cause of the substantial disadvantage in a reasonable adjustment claim. As Mr Hilaire refused to attend the interview because he had lost confidence in his employer, rather than because of a reason connected with his disability, there was no causation, and the duty to make reasonable adjustments did not arise.
It also highlights that applying a reasonable adjustment does not mean that an advantage over and above the removal of a particular disadvantage needs to be put in place. An employer is entitled to consider whether a proposed adjustment would actually alleviate the disadvantage and may also consider the effect on other employees when considering whether that adjustment is reasonable.
When considering making reasonable adjustments, it is helpful to consider the Equality Act 2010 Employment Statutory Code of Practice. Paragraph 6.33 of the Code of Practice sets out a non-exhaustive list of possible adjustments that might be taken by employers. When assessing whether such adjustments would be reasonable, paragraph 6.28 of the Code of Practice sets out some of the factors which might be taken into account.
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