Mr J Hilaire -v- Luton Borough Council [2022]

Requiring disabled employees to attend a competitive interview in a redundancy situation can amount to a substantial disadvantage

The employment appeal tribunal (EAT) in Mr J Hilaire v Luton Borough Council [2022] EAT 166 held that the provision criterion or practice (PCP) of requiring a disabled employee to attend an interview did amount to a substantial disadvantage.  However, the PCP did not cause the disadvantage as the Claimant had decided not to attend the interview in any event, due to his loss of confidence in his employer.

The Claimant was disabled with the mental impairment of depression and with the physical disability of arthritis. The employment tribunal (ET) found that the Claimant suffered moderately severe depression with symptoms of lethargy including excessive sleep, social disengagement including a wish to avoid people, lack of motivation, problems with memory and concentration, along with a persistent low mood and persistent difficulty in normal social interaction.

There was a redundancy situation that required those interested in working in the new structure to apply for a post. The Claimant was given an extension for providing an application form, he also received some level of support in the preparation of the application form and a postponement of the interview whilst he was off sick.

The ET found that the PCP was requiring the Claimant to attend an interview but that he was not placed at a substantial disadvantage by the PCP as he was not going to attend the interview in any event.

The Claimant appealed.  The EAT held:

  • The ET found that the Claimant had problems with memory and concentration and with social interaction, which would obviously hinder effective participation in the interview. The ET did not consider if this limitation was more than minor or trivial. On that basis, this aspect of the ET’s judgment was flawed.
  • The ET concluded that the Claimant would not have taken part in the interview, and would not have done so for reasons unconnected with his disability.
  • Therefore, it was not an effect of the disability which prevented the Claimant from complying with a PCP, it was a choice he made because of his belief, still expressed on appeal, that the process was just a means of dismissing him.
  • Whilst “slotting in” (thus avoiding a competitive interview process), was objectively, a step which would have alleviated the disadvantage, it was a step which would have impacted on others who had taken part in a process of selection. Making a reasonable adjustment is not a vehicle for giving an advantage over and above removing the particular disadvantage.
  • In the circumstances of this case the ET was entitled to consider that, given the surrounding circumstances and impact on other employees, no step, including slotting in, would be a reasonable step for the employer to have to take.

Author: Haylee Chambers, Associate Solicitor, Employment