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Impact of reasonable adjustment on other employees might render the adjustment unreasonable
The Employment Appeal Tribunal (EAT) in the case of Hilaire v Luton Borough Council has recently considered what amounts to a reasonable adjustment.
The Respondent – Luton Borough Council – conducted a redundancy exercise in which at-risk employees were required to apply and attend an interview for roles within the new structure. Mr Hilaire (the Claimant) suffered from two disabilities namely, depression and arthritis. He refused to attend the interview for a new role and brought a claim for failure to make reasonable adjustments arguing that the requirement to attend the interview would put him at a substantial disadvantage. Instead, he argued, the Respondent should have made a reasonable adjustment to offer him the job without attending an interview.
The Employment Tribunal (ET) rejected his claim and held that he was not placed at a substantial disadvantage, and he was able to attend the interview “if he wanted to”. The Claimant appealed.
When considering the duty to make reasonable adjustments, S.20(3) of Equality Act 2010 provides that where the duty applies it is a requirement for a person or more likely an employer “(…) to take such steps as it is reasonable to have to take to avoid the disadvantage.”
The EAT found that the ET erred in not considering how the Claimant’s disability would have hindered his ability to participate in the interview and instead merely focused on his ability to attend it.
The EAT, however, agreed with the ET’s finding that the real reason behind his choice to not attend an interview had nothing to do with his disability. His refusal was because of his belief that managers were conspiring to dismiss him. As a result, his reasonable adjustment claim failed, and it was held that given the circumstances of this case and, importantly, the position of other employees, it was not reasonable to simply offer a job to the Claimant.
This case highlights that a reasonable adjustment is not “a vehicle for giving an advantage over and above removing the particular disadvantage”. It is indeed a reminder that the duty is to ameliorate any relevant disadvantage but that other staff members should be borne in mind when making reasonable adjustments. It is also noteworthy in this case that the duty to make reasonable adjustments was held not have been engaged because the Claimant’s non-attendance at the interview was for a reason unconnected with his disabilities – causation will always therefore be relevant to assess.