When Is An Adjustment Reasonable?
Tuesday 20th December 2022
The appropriateness of reasonable adjustments put in place were considered by the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) in Hilaire v Luton Borough Council.
Facts
During a redundancy process Hilaire, who suffered from depression and arthritis, had expressed interest in applying for an alternative role with his employer. He was given two extensions to submit his application, and was then required to attend an interview. He informed his employer he was too ill to attend that interview and the rescheduled interview. He was made redundant on the basis that he had not secured an alternative role in the timeframe, despite extensions. Hilaire brought a claim to the ET for disability discrimination.
Decision
The ET concluded that requiring Hilaire to attend an interview was a ‘provision, criterion, or practice’ (PCP) but that he had not been placed at a substantial disadvantage and so his claim did not succeed. Hilaire appealed and the EAT held that the ET was mistaken in its approach.
The EAT held that the ET should have considered whether Hilaire’s problems with memory and concentration would have hindered his participation in the interview and whether that limitation was more than minor or trivial. The employer allowing additional time to apply and allowing a rescheduled interview can be reasonable adjustments where the employee needs time to recover from the symptoms which hinder their participation. However, in cases such as this, where the employee has a significant impairment and where recovery would be a long process, a short delay in proceedings is not a reasonable adjustment. Despite this, the appeal did not succeed as the EAT agreed that there was evidence to support the ET’s decision that Hilaire would not have taken part in the interview regardless of his disability.
Comment
The key takeaway from this case for employers is the reminder about the importance of making the correct type of reasonable adjustment. While it may seem reasonable to give employees suffering from an impairment a short extension to complete forms or prepare for interviews/hearings (and in many cases it will be useful for the employee), that alone may not be sufficient to fulfil the legal requirement to make reasonable adjustments. It is important to consider the nature of the employee’s impairment, and what the specific limitation is. It could be that other changes are needed to facilitate their participation and to alleviate the disadvantage.
For advice on reasonable adjustments and managing disability in the workplace, please speak to a member of the Employment team.
