Reasonable adjustment not advantageous adjustment – Hilaire v Luton Borough Council
The recent decision by the EAT, in Hilaire v Luton Borough Council, provides a useful reminder of the test for establishing a substantial disadvantage and what constitutes a reasonable adjustment. Notably the EAT concluded, making a reasonable adjustment is not a vehicle for giving an advantage over and above removing the particular disadvantage.
Employment Tribunal Decision
The Claimant appealed a decision made by the ET regarding a failure to make reasonable adjustments.
The ET found that the Respondent had a provision, criterion, or practice (‘PCP’) of requiring employees attend an interview in a redundancy process.
The Claimant was held to be disabled for purposes of section 6 of the Equality Act (‘EqA’) 2010 by virtue of his depression with somatic syndrome, and arthritis.
The ET considered the Claimant’s ability to engage in previous meetings and evidence of the Claimant stating, by email, that he was not attending the redundancy interview irrespective of his disability. On the basis of the evidence, it concluded the Claimant would not have attended the redundancy interviews and as such the Claimant was not placed at a substantial disadvantage.
Appeal
The EAT found the ET had erred in considering disadvantage for the purpose of section 20 EqA. They held the ET had incorrectly made a binary decision on whether the Claimant was or was not able to participate in the interview.
The EAT highlighted the ET should have considered the disadvantage ‘in comparison with persons who are not disabled’, namely whether the effects of the disability make it more difficult for a disabled employee to comply with a PCP.
Upon consideration of the Claimant’s medical evidence, the EAT found it was obvious that the Claimant’s disability would hinder effective participation in an interview. The EAT then stated the ET should have then considered whether the disadvantage was substantial (more than minor or trivial).
Whilst it is clear the application of the law in respect of a substantial disadvantage was flawed, the Claimant was unable to succeed in his appeal on the basis of causation. The EAT found it was appropriate for the ET to conclude the Claimant would not have attended the interview due to reasons unconnected with his disability.
The appeal was unsuccessful on the basis of causation alone, however, the EAT helpfully considered the reasonableness of the proposed adjustments by the Claimant.
The EAT found the Claimant’s proposed adjustments largely did not avoid or alleviate the disadvantage save for his proposal that he should have been ‘slotted’ into a role in the new company structure without being interviewed.
The EAT rejected that ‘slotting’ the Claimant into the reorganised structure would be reasonable. It noted the impact it would have on other employees within the organisation. It acknowledged if there is a vacancy which can be filled as an adjustment, it can be a reasonable step, but it will not necessarily always be.
The EAT stressed an adjustment was to avoid or alleviate a disadvantage not to create an advantage over and above that.
In considering the circumstances of this case, the EAT held there was no reasonable step the Respondent could have taken.
Comment
The case provides a useful reminder of the test to establish a substantial disadvantage:
- Establishing whether there is a disadvantage in comparison with persons who are not disabled.
- Considering whether the disadvantage is substantial (more than minor or trivial).
- Considering causation. Analysing whether it is the effect of a disability which prevents a claimant from complying with a PCP and not some other unrelated reason.
It is also clear from this decision that the reasonableness of any adjustments should be determined with consideration of what wider impact it may have and whether it would be going beyond what an adjustment is intended to do in creating an advantage.
