The Limits on the Duty to Make Reasonable Adjustments
In Hilaire v Luton Borough Council, the Employment Appeal Tribunal addressed the duty to make reasonable adjustments, and whether it applied in the context of a disabled employee refusing to attend an interview
Mr Hilaire was an employee of the council, who suffered from depression and arthritis. As part of the restructuring of the council, he was required to apply for a new role and attend an interview to avoid his potential redundancy. Because of his disabilities, the council gave Mr Hilaire additional time and support to complete his application for a role in the new structure.
However, Mr Hilaire refused to attend the interview, and provided a fit note stating that he could not attend. Mr Hilaire did not respond to subsequent correspondence enquiring as to when he might be available. With thirteen candidates having been interviewed already, a deadline for Mr Hilaire’s delayed interview was fixed. Three days prior to this deadline, Mr Hilaire informed the council that he was too ill to attend. Subsequently, he was not allocated a role in the new structure and was dismissed by reason of redundancy.
Among other claims, Mr Hilaire brought a claim to the Employment Tribunal for “failure to make reasonable adjustments”. Employers are obliged to make “reasonable adjustments” where a provision, criterion or practice puts a disabled employee at a disadvantage compared to others.
Mr Hilaire argued that the requirement to attend an interview was a provision, criterion or practice, which had put him at a substantial disadvantage because of his depression and arthritis, and that it was a reasonable adjustment for the council to have given him a role in the new structure without necessitating an interview. Each of depression and arthritis can amount to a disability if they have a substantial and long-term adverse effect on the individual’s ability to carry out day-to-day activities, although whether Mr Hilaire was in fact disabled was not the key issue here.
The Employment Tribunal rejected Mr Hilaire’s claim, on the basis that he had not been placed at a substantial disadvantage, and that he could have attended the interview if he wanted to. Mr Hilaire appealed to the Employment Appeal Tribunal (EAT).
The EAT found that the Employment Tribunal had failed to consider how Mr Hilaire’s disability might impact on his ability to participate in, rather than simply attend, the interview. However, as the real reason for Mr Hilaire’s refusal to attend was not his disability, but rather his lack of confidence in his employer who he believed was using the restructuring process as an excuse to dismiss him, the EAT held that his reasonable adjustments claim failed.
The EAT also considered whether putting Mr Hilaire into a role that would not require an interview, as he requested, would have been a reasonable adjustment. While this step would have alleviated any disadvantage suffered by Mr Hilaire as a consequence of his disability, it would have also impacted on other potentially redundant employees, increasing the likelihood of their being made redundant. The EAT stated that a reasonable adjustment is not “a vehicle for giving an advantage over and above removing the particular disadvantage”.
This case reiterates that a reasonable adjustments claim, or, indeed, any protected characteristic claim made under the Equality Act, must relate to the protected characteristic in question. An employee’s disability, or other protected characteristic, cannot be used as an excuse to bring a claim where it has no relevance to the circumstances. Further, an employee can only bring a claim where there were reasonable adjustments that the employer could have made to account for the employee’s disability. This not only means that the cost of such adjustments must not be disproportionate, but that employers are not required to make adjustments that would have the effect of granting the employee an advantage over and above their colleagues, as would have been the case here.
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