Employment Law Cases
PCP: disability and non-compliance
It was not a reasonable adjustment simply to slot a disabled employee into a new structure as part of a redundancy exercise.
Mr Hilaire was disabled (depression and arthritis). His employer, the council, conducted a redundancy exercise whereby staff who were at risk of redundancy could apply for posts in a new organisational structure. Because of his disability, his employer gave Mr Hilaire extra time to apply as well as help in completing his application form. When he was asked for interview, he told his employer that he could not attend. He was asked more than once when he would be able to attend but he did not reply. A deadline was imposed so that the restructure process could be completed (13 candidates had already been interviewed and were awaiting a response). Mr Hilaire again told his employer he was too ill to attend and he was later dismissed for redundancy.
He presented various tribunal claims, including failure to make reasonable adjustments – he argued that it would have been such an adjustment to offer him a post in the new structure without requiring him to attend an interview. The tribunal dismissed his claims. It found that that the relevant provision, criterion or practice (PCP) applied by the employer was that of requiring Mr Hilaire to attend an interview. The tribunal then concluded that this PCP did not place him at a disadvantage as he could have engaged with the process if he had wanted to do so, but he chose not to attend as he believed managers were conspiring to sack him. Mr Hilaire appealed.
The appeal was dismissed.
On the question of whether Mr Hilaire’s disability placed him at a substantial disadvantage in complying with the PCP, the tribunal got it wrong and had applied the wrong test. It looked at whether Mr Hilaire was capable of attending an interview; it should have considered whether it was more difficult for him to attend because of his disability. The evidence showed that he had problems with memory, concentration, and social interaction – it was obvious that such problems would, at the least, hinder effective participation in the interview, when compared with persons who were not disabled. The tribunal should have recognised that and looked at whether the limitations on his ability to participate were substantial, i.e. more than minor or trivial.
That was not the end of the matter however because the EAT held that the tribunal had correctly concluded that Mr Hilaire wouldn’t have taken part in an interview in any event, by choice, for reasons unconnected with his disability. In other words, the application of the PCP didn’t cause the disadvantage Mr Hilaire suffered. He had stated in an email ‘even if I wasn’t off sick with work-related stress, causing depression, I still would not have attended this interview’. He had also attended other meetings during his sickness absence. It was not an effect of his disability that prevented him complying with the PCP, rather it was a choice he made because he believed the employer was trying to engineer his dismissal.
While these findings disposed of the appeal, the EAT nevertheless went on to look at what would have amounted to reasonable adjustments had Mr Hilaire been able to show substantial disadvantage because of his disability.
An adjustment must potentially be capable of alleviating the effect that creates the disadvantage. In this instance, simply delaying the interview (as Mr Hilaire’s employer had done) would not amount to a reasonable adjustment because this would not, in itself, have allowed him to participate because of the nature of his disability and the protracted recovery process. However, the tribunal’s decision that there was no other reasonable step which the employer could have taken was a rational one. Thirteen other staff were involved and there was a time element. The tribunal was entitled to accept the manager’s assertion that there were no other adjustments that could have been made to accommodate Mr Hilaire. While slotting him into a new role without interview would have removed the disadvantage to him, it would have impacted on others who were part of the selection process. Making a reasonable adjustment is not a vehicle for giving an advantage over and above removing the particular disadvantage caused by the relevant PCP.
This case provides useful guidance on the approach to be taken by employers when considering the duty to make reasonable adjustments and the extent to which they are expected to go in making any such adjustments.