The recent judgement of the Employment Appeal Tribunal (EAT) in Hilaire v Luton Borough Council, has provided a useful reminder of the meaning of "substantial disadvantage" in a practical setting and of the limits to an employer’s obligation to make reasonable adjustments in the workplace.
The duty to make reasonable adjustments arises when the employer has a policy, criterion or practice (a PCP) which puts a disabled person at a substantial disadvantage in comparison with those who are not disabled.
Mr Hilaire suffered from anxiety, depression and arthritis and was on long term sick leave. His employer began a restructuring process and asked him (and various others) to attend an interview if they wanted a role within the new structure. Mr Hilaire was given extra time to complete his application and was also supported to complete the application form. He refused to attend his interview without giving a timeframe in which he would be able to attend. Given that there were 13 other employees awaiting the outcome of the interview process, a deadline was eventually imposed by which Mr Hilaire needed to attend his interview. He never did so. He was dismissed by reason of redundancy. He brought a claim in the employment tribunal for, among other things, a failure to make reasonable adjustments.
The tribunal held that Mr Hilaire had not been put at a substantial disadvantage by the obligation to attend an interview. In fact, he had chosen not to participate due to his belief that his employer was scheming to get rid of him, and this belief was not related to his disability.
Mr Hilaire then appealed to the EAT which agreed with the tribunal, but for different reasons. The EAT felt that the tribunal had taken the wrong approach in assessing whether Mr Hilaire had suffered a substantial disadvantage in being asked to interview for a new role. This was because it had only considered whether or not he could have actually attended the interview. As he could have attended the interview, the tribunal concluded that he was not put to a substantial disadvantage and no duty arose.
In fact, and as the EAT made clear, "disadvantage" is a relative concept and the correct question was whether it was harder for him to attend than his non-disabled colleagues. It was obvious from the medical evidence that it was harder for Mr Hilaire to comply with the interview obligation due to his difficulties with memory, concentration and social interaction. Therefore, he had been put at a disadvantage by being required to do so. The tribunal should have then moved on to consider whether or not the disadvantage was "substantial" which it did not. However, while the EAT felt that the tribunal’s original reasoning was flawed, it did agree with their ultimate conclusion. The challenges Mr Hilaire would have faced in attending an interview were not actually what prevented him from doing so. What had prevented him was his own belief, which he continued to state during the appeal, that his employer was finding excuses to dismiss him. He chose not to attend and was therefore not prevented from doing so because of the substantial disadvantage that he would have suffered. Given that factual point, his appeal was dismissed.
What is the purpose of "reasonable adjustments"?
The EAT also went on to consider the concept of reasonable adjustments. It helpfully reiterated that the purpose of a reasonable adjustment is purely to remove the effect of the relative disadvantage. It is not to put the disabled person ahead of their non-disabled colleagues. Mr Hilaire’s assertion that he should have simply been given a role in the new structure without any interview at all was not reasonable, especially given the other 13 employees that had gone through the interview process. Any further delay to the process would have had an unreasonable effect on them as they were waiting for the results. The EAT held there were not any further reasonable adjustments that the employer could have made, in this particular set of circumstances.
This judgement makes it very clear that the correct way to assess "substantial disadvantage" is to take a comparative approach by reference to non-disabled colleagues who are also subject to the PCP. In addition, if there is a substantial disadvantage, an employer is entitled to consider whether a proposed adjustment will actually alleviate that disadvantage and may also take into account the effect on other employees when considering the reasonableness of that adjustment. The employer is not obligated (though there may well be times when it is reasonable to do so) to go even further and favour the disabled employee over everyone else.
While this is not a ground-breaking decision, it is still a useful reminder of basic principles and the importance of the factual context.