Hilaire v Luton Borough Council

The Employment Appeal Tribunal (the EAT) ruled on the employee’s appeal against the employment tribunal’s (The ET’s) decision, rejecting his claims which alleged that his selection for redundancy, without the employer having given adequate consideration to his disability, had amounted to a failure to make reasonable adjustments. The employee, who suffered from depression and arthritis, had been required to attend an interview in a redundancy situation and he had informed the employer that he had been too ill to attend. The employer relied on the fact that the employee had been granted two extensions to the deadline for submission of an application for a role in the new structure, and that he had had been offered an alternative date for his interview. The ET concluded that the employer had applied a ‘provision, criterion or practice’ (PCP) of requiring the employee to attend an interview, and that he had not been placed at a substantial disadvantage by that PCP. The EAT held that the ET had erred in its approach to the first aspect of ‘disadvantage’ by engaging in a binary decision concerning whether the employee could have taken part in the interview or not. The relevant matters in considering disadvantage under s 20 of the Equality Act 2010 (the Act) were the effects of the disability which made it more difficult for the disabled employee to meet an expectation of the employer (the PCP). The EAT held that, where the ET had found that the employee had had problems with memory and concentration and with social interaction, such problems would, at the least, have hindered effective participation in the interview. Accordingly, the ET should then have considered whether the limitation on the ability to participate had been more than minor or trivial. The EAT further ruled that the second aspect of disadvantage was causation, and that there was evidence supporting the ET’s conclusion that the employee would not have taken part in the interview for reasons unconnected with his disability. Therefore, the EAT held that his disability had not prevented him from complying with a PCP and that, on that basis alone, the appeal could not succeed. The EAT also ruled that, under the Act, an adjustment which allowed sufficient time for the employee to recover from the effects which would have hindered his participation in an interview, could be considered an adjustment within the meaning of the Act, but that, given the significant impairment in the present case, from which recovery would have been protracted, the short delay to the date of the interview which the employer had applied could not be considered an adjustment. However, the EAT ruled that, on the evidence, the ET had been entitled to consider that the surrounding circumstances and the impact on other employees had meant that no step, including ‘slotting in’, would have been a reasonable step for the employer to have taken. Accordingly, the appeal was also dismissed on that basis.

Hearing Date: 23 November 2022

Court: Employment Appeal Tribunal

Judge: Judge Wayne Beard

Published Date: 01/12/2022

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