The requirement for a disabled local authority employee to attend redundancy interview placed him at a disadvantage, but the Employment Appeal Tribunal found removing him from the process would have been unfair to others in the redundancy pool.
The EAT agreed that Luton Borough Council had placed Mr Hilaire, who had depression and arthritis, at a disadvantage when it required him to particpate in an interview in a redundancy situation in 2013.
Judge Wayne Beard found that a previous employment tribunal had taken the wrong approach when it found Hilaire had not been disadvantaged by the process. The tribunal found the claimant 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 dismiss him.
In 2013, Luton Borough Council was restructuring its youth support department and it required those interested in working in the new structure to apply for a post. The claimant was told he would be made redundant if he was unsuccessful in applying for a job in the new team.
Hilaire had been given an extension to submit his application. He was invited to an interview on 4 September 2013, but had been signed off sick by his GP. The council contacted the claimant to ask him when he might be able to attend an interview, but he did not respond.
A deadline of 23 September was put in place for the interview. The council maintained that it needed to interview Hilaire to ensure the process was fair. Thirteen candidates had already been interviewed and were awaiting a response from the organisation.
The claimant wrote to the organisation on 20 September stating that he was too ill to attend the redundancy interview. However, he attended a formal appeal meeting in respect of a written warning for sickness absence on 27 September.
In its earlier judgment, the employment tribunal found that Hilaire was able to engage with the interview process “if he wanted to”, noting that he had sent the council an email that said: “Even if I wasn’t off sick with work related stress, causing depression, I still would not have attended this interview”.
The email went on to say that he did not feel managers would support him to return to work because they were ”conspiring to dismiss me through my sickness”.
The tribunal concluded that he was not placed at a disadvantage by the employer’s provision, criterion or practice (PCP) of requiring him to attend an interview because he had no intention to attend.
However, when considering the claimant’s appeal, the EAT found the tribunal had made an error. The EAT’s judgment in Mr J Hilaire v Luton Borough Council says the tribunal approached the case in a binary way, examining whether Hilaire could attend the interview or not, which was not the correct method.
The EAT noted that the claimant’s disability meant he had problems with memory, concentration and social interaction, which would hinder effective participation in the interview.
Making a reasonable adjustment is not a vehicle for giving an advantage over and above removing the particular disadvantage” – Judge Wayne Beard
Despite this, the EAT agreed with the tribunal’s finding that it was not an effect of the disability which prevented the claimant from engaging with the interview, but his choice resulting from his belief that the organisation was trying to dismiss him because of his absence record.
It also agreed that there was no reasonable step for the council to have taken to avoid disadvantage, as it had already delayed the interview for him. The claimant argued that the organisation should have “slotted” him into a role without an interview, but this was dismissed.
Judge Beard said: “This was a collective redundancy process where selection for retention applied to at least 13 employees, where funding was being reduced and there was a time element to the decisions to be made.
“Slotting in, was objectively, a step which would have alleviated the disadvantage. However, that 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 respondent to have to take.”
Luton Borough Council has been contacted for a response.