London Borough of Southwark v. Charles (Disability Discrimination)

An employer may be required under Equality Act 2010 to modify a redeployment selection process where its practice of requiring a formal interview puts a disabled employee, known to be unable to attend meetings and interviews, at a substantial disadvantage. The duty lies on the employer and does not depend on the employee first expressing an unequivocal interest in a vacancy.

Dispensing with, or varying, a formal interview may be a reasonable adjustment. However, a breach does not establish that the employee would necessarily have obtained the post. At remedy, the tribunal must determine whether an adjusted assessment process would probably have led to appointment and avoided dismissal.

The claimant was dismissed for redundancy after his grade 9 post was deleted in a reorganisation. He had been placed in a redeployment pool and had expressed interest, subject to clarification about shift work, in a Noise Support Officer post.

Occupational Health informed the employer that he was unfit to attend administrative meetings. The Employment Tribunal held that this included interviews. It dismissed his ordinary unfair-dismissal claim, but upheld claims for discrimination arising from disability and failure to make reasonable adjustments.

The employer appealed, contending that the Tribunal had erred in finding that it should have dispensed with the formal interview requirement and that the claimant had not expressed an unequivocal interest in the vacancy.

1. Appeal dismissed. The Employment Tribunal was entitled to find that requiring redeployees to attend an interview was a practice for the purposes of section 20 of the Equality Act 2010.
2. The Tribunal was also entitled to find that the practice put the claimant at a substantial disadvantage. His disability prevented him from attending management meetings and interviews, so he could not demonstrate his suitability for vacancies. The employer knew both of the disability and of its practical effect.
3. Those findings established the ingredients of the reasonable-adjustments duty. The employer's duty was not conditional upon the claimant first making an unequivocal expression of interest in the Noise Support Officer post. The Tribunal was entitled to hold that a reasonable adjustment required the employer to dispense with, or vary, the formal selection interview and assess suitability by another means.
4. Although unnecessary once the section 20 finding was sustained, the Tribunal was also entitled to uphold the section 15 claim. Requiring attendance at interviews was unfavourable treatment because of something arising from the disability, and no justification had been advanced.
5. The Employment Appeal Tribunal gave guidance for the pending remedies hearing. The relevant disadvantage was the inability to undergo the formal interview, not dismissal itself. An adjusted assessment process would not automatically have resulted in appointment, so causation and any loss flowing from the failure to adjust required further submissions and, if appropriate, evidence.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal's findings of liability under sections 15 and 20 of the Equality Act 2010 were upheld, subject to guidance on causation at remedy.
• Employment Tribunal: dismissed the ordinary unfair-dismissal claim but upheld claims for discrimination arising from disability and failure to make reasonable adjustments.