The Claimant in this case worked in the youth support department of Luton Borough Council. He suffered from depression and arthritis.
This department was going through a restructuring process. This meant that the existing employees had to apply for a position in the new department structure and if they were unsuccessful, they would be made redundant. The Respondents in this case recognised that the Claimant was disabled and made adjustments to their process to account for this.
The Claimant was given extra time and support to complete his application form. He then declined to attend an interview and provided the Respondent with a fit note stating that he was not able to attend. The Respondent then reached out to him to rearrange the interview and he did not respond. The Respondent decided that they would set a deadline for when the rearranged interview could take place as 13 individuals had already been interviewed and were waiting to hear back. Three days before this deadline the Claimant stated that he was too unwell to attend an interview.
Subsequently, the Claimant was dismissed by reason of redundancy.
The Claimant raised a claim for a failure to make reasonable adjustments. He argued that requiring him to actually attend an interview put him at a substantial disadvantage. He claimed that the appropriate reasonable adjustment in this scenario would have been to simply slot him into a suitable role with no interview.
The Employment Tribunal rejected his claim stating that he was able to engage with the process but simply chose not to as he felt aggrieved by the redundancy situation. This was evidenced by the fact that the Claimant had written in his letter that even if he wasn’t unwell, he “still would not have attended this interview” and the managers were “conspiring to dismiss” him.
The Claimant appealed this decision to the Employment Appeal Tribunal (EAT). It was found that the Employment Tribunal had taken the wrong approach when looking at this claim. The Tribunal had taken a binary approach, simply asking could the Claimant attend the interview, yes or no?
The EAT stated that the Claimant’s disability led to problems with memory, focus, and social engagement all of which would make it difficult to participate in an interview. Factors which the original decision did not take into account. On the whole, the EAT did agree that the Claimant’s lack of engagement was not an effect of his disability.
It was decided that the reasonable adjustment was allowing for a delay in the interview. Yes, the interview requirement did put the Claimant at a disadvantage but there was no reasonable way for this disadvantage to be avoided. The suggestion that the Claimant could just be slotted into a role without interview was dismissed. The EAT stated that “Making a reasonable adjustment is not a vehicle for giving an advantage over and above removing the particular disadvantage” meaning the duty to make reasonable adjustments is there to offset a disadvantage to create a level playing field, not create an advantage.
This case is good news for employers as it emphasises the point that reasonable adjustments have to be just that – reasonable. What is or is not reasonable will need to be looked at on a case by cases basis. Factors that can be looked at include: the practicality, the cost and the resources of the business.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.