Employers are obliged to make reasonable adjustments to remove or reduce any substantial disadvantage that disabled employees experience because of workplace arrangements. In Hilaire v Luton Borough Council, the EAT has confirmed the limits of that requirement. The employee was disabled. The employer went through a reorganisation and needed to make redundancies. All employees were required to interview for a place in the new structure. Adjustments were made for the employee, including extra time and support with his job application. However, he refused to attend an interview and submitted a sick note saying he was not well enough. He didn’t respond to requests about when he would be fit. All 13 other candidates had been interviewed and decisions needed to be made, so the employee was given a deadline to attend an interview. He said he was too ill. However, a week later he attended an appeal hearing against a sickness sanction. He was dismissed for redundancy.
The employee brought a reasonable adjustments claim, saying the employer should have slotted him into a role in the reorganised business. The employment tribunal said he could have attended the interview if he had wanted to and dismissed his claim. The employee appealed. The EAT said the tribunal had made a legal error because they hadn’t considered the impact that the employee’s disability had on his ability regarding the interview process itself rather than just his ability to attend it. However, the evidence showed that the employee didn’t do the interview for reasons that were nothing to do with his disability. He thought the employer was using the process as a way of disguising his dismissal for sickness absence with redundancy. Slotting him into a role would have reduced the disadvantage but would have affected the other potentially redundant employees. The EAT said that a reasonable adjustment was not a vehicle for giving an advantage over and above removing a particular disadvantage (experienced by a disabled employee).
This case shows that reasonable adjustments are designed to remove disadvantage experienced as a result of disability, rather than giving an advantage which exceeds the levelling of the playing field. The employer in this case had made reasonable adjustments to the recruitment process, but the law did not require them to prioritise the employee for a job over other employees if there were reasonable adjustments that could remove the disadvantage. Employers must consider each case carefully to ensure that they hit the sweet spot on every occasion.
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539