Could a requirement for disabled employees to attend a redundancy interview constitute a substantial disadvantage?
Employees who are disabled for the purposes of the Equality Act 2010 may have a claim for disability discrimination where the employer adopts a provision, criterion, or practice (PCP) that places them at a substantial disadvantage when compared with non-disabled employees. There is a requirement for employers to take reasonable steps to remove that disadvantage. Examples of a PCP might include a rule, policy, or particular method of working that the employer adopts.
The short answer to the question is, yes.
The case of Hilaire v Luton Borough Council involved an employee who had been off sick with depression since 2012. As part of a restructuring, the Council required those employees who were interested in working in the new structure to apply for a role. The Claimant, with support, applied for a post and was invited to interview. He declined to attend while he was absent and gave no indication as to when he would. The Council interviewed other candidates for positions and eventually dismissed the Claimant on grounds of redundancy.
The Claimant brought a number of claims to the employment tribunal, including failure to make reasonable adjustments on the basis that the Council’s PCP (the requirement that he attend an interview) placed him at a substantial disadvantage. The Claimant argued that the Council should have removed this by simply allocating him a role without the need to interview.
The tribunal found initially that the PCP had not placed the Claimant at a substantial disadvantage because the Claimant could have engaged in the process if he wanted to but chose not to for other reasons.
However, on appeal, the Employment Appeal Tribunal (EAT) decided that the tribunal had applied the wrong test. The question was not simply whether the Claimant was capable of attending the interview, but rather whether the Claimant’s disability made it more difficult for him to. The Claimant suffered from concentration and memory problems and the EAT found that this would have impacted his ability to take part in the interview process when compared with non-disabled employees.
As it goes, the EAT did ultimately agree that the tribunal was correct to dismiss the claim because it was not PCP which caused the disadvantage to the Claimant. It was in fact the Claimant’s lack of confidence in the Council which had been the reason why he chose not to engage with the process. An email was produced during evidence which was sent from the Claimant stating that even if he was not off sick he would not attend an interview.
While this case’s particular claim was ultimately lost, it does highlight how the tribunal will approach the issue of substantial disadvantage in disability claims.
For further information please contact the Employment Team