J Hilaire v Luton Borough Council

A requirement to attend an interview includes effective participation in it. Under Equality Act 2010, the question is whether the effects of disability make compliance with that requirement more difficult than for a person without the disability, and whether the resulting disadvantage is more than minor or trivial.

However, disability must cause the disadvantage. Where an employee would not participate for a reason unrelated to disability, the duty to make reasonable adjustments is not engaged. A proposed step must avoid or alleviate the particular comparative disadvantage. An adjustment must not give an advantage beyond that purpose, and its reasonableness may depend on the effect on other employees in a collective redundancy process.

The claimant appealed from an Employment Tribunal decision sent to the parties on 20 November 2019, which dismissed his claims. The only ground permitted to proceed concerned an alleged failure to make reasonable adjustments during a redundancy process.

The respondent required employees seeking posts in a new structure to attend interviews. The claimant, who was disabled by depression, did not attend. The Tribunal found that he could engage with meetings if he wished but had decided not to attend the interviews because he had lost confidence in the respondent.

The appeal raised whether the Tribunal had correctly assessed substantial disadvantage under the interview requirement and whether alternatives, including placing the claimant in a role without interview, were reasonable adjustments.

1. Appeal dismissed. The Employment Appeal Tribunal held that the Tribunal had evidence on which it was entitled to find that the claimant would not attend the interview for reasons unconnected with his disability. That finding defeated the claim because disability had not caused his non-compliance with the PCP.

2. The Tribunal’s PCP, requiring attendance at an interview, necessarily included participation in the interview. The EAT rejected a reading that treated attendance as a purely physical, binary matter. In assessing substantial disadvantage under Equality Act 2010, a tribunal must compare the disabled employee with persons who are not disabled. It must consider whether the effects of disability make compliance more difficult and, if so, whether that difficulty is more than minor or trivial.

3. On the Tribunal’s findings, difficulties with memory, concentration and social interaction could hinder effective participation in an interview. Its analysis of disadvantage was therefore flawed insofar as it treated the issue only as whether the claimant was capable of attending. That error did not alter the result because the Tribunal had made the separate, sustainable finding on causation.

4. In any event, a step is an adjustment under section 20(3) only if it has the potential to avoid or alleviate the particular disadvantage. A short postponement could not do so where recovery from the impairment was likely to be protracted.

5. The Tribunal was entitled to find that no further step was reasonable. Placing the claimant directly into a role could have alleviated the disadvantage, but it would have affected other employees in a collective selection process. As Archibald v Fife Council illustrates, filling a vacancy may be reasonable, but is not necessarily so. Reasonable adjustments do not confer an advantage beyond removal of the relevant disadvantage.

• Employment Appeal Tribunal: Appeal dismissed: [2022] EAT 166.
• Employment Tribunal: Employment Judge Smail and members dismissed all claims in a reserved judgment sent to the parties on 20 November 2019.
• Court of Appeal: Bean LJ refused permission to appeal earlier EAT decisions concerning grounds not permitted to proceed.