EAT holds that requiring a disabled employee to attend a competitive interview in a redundancy process amounted to a substantial disadvantage
In Hilaire v Luton Borough Council, the EAT has held that the requirement to attend a competitive interview in a redundancy situation (the practice, provision or criteria (PCP)) was a substantial disadvantage. However, the Tribunal had evidence upon which it was entitled to draw the conclusion that Mr Hilaire did not attend the interview out of choice, and that did not relate to his disability. Therefore, while Mr Hilaire’s appeal was successful, it did not change the outcome of the judgment.
In this case, Mr Hilaire had arthritis and depression, and had a number of ongoing HR processes at the time of the redundancy situation. The Council were reducing numbers from 13 to 4.9 FTE roles, and Mr Hilaire was affected. He argued that, because of his disability, he was substantially disadvantaged in being required to attend a competitive interview, and that the Council should have slotted him into one of the roles. The Tribunal took into account the fact that Mr Hilaire was able to attend other meetings during the redundancy process, and an email which he sent saying that even if he wasn’t depressed, he would not have attended the interview as it was a guise to get rid of him because of his sickness absence. The Tribunal dismissed all Mr Hilaire’s claims.
Mr Hilaire appealed against all aspects of the judgment but was only allowed to proceed in respect of the decision that the requirement to attend an interview was not a disadvantage. The EAT held that Mr Hilaire did have problems arising from his disability which made it more difficult for him to effectively participate in a competitive interview. The Tribunal should have considered whether the limitation was more than minor or trivial, and in this aspect, the judgment was flawed. However, the second aspect of disadvantage is causation. The Tribunal were entitled to conclude that Mr Hilaire would not have participated in the interview for reasons unconnected with his disability, namely that he had lost all confidence in the Council. Therefore, while the appeal was successful on this point, Mr Hilaire still did not succeed in his claim.
Why does it matter?
If you are undertaking a redundancy process which involves a competitive interview and one or more of the pool of employees has a disability, consider the impact of the requirement to attend a competitive interview and whether there are any reasonable adjustments you should make to alleviate any disadvantage. Adjustments which should be considered include, foregoing the need for an interview for the disabled person, giving the disabled person additional support or interview training and/or delay. However, not all these adjustments will be reasonable in the circumstances. We recommend that you seek legal advice in these circumstances.
If you have any questions about this decision, please do get in touch.
#disability #employmentlawuk