Reasonable adjustments to a redundancy process
Readers will be aware that where an employee has a disability, and the employer knows or should know about that disability, the employer has a number of duties. These duties include the requirement, where the employer has a provision, criterion or practice (“PCP”) which places the disabled employee at a substantial disadvantage, compared with those who are not disabled, to make such adjustments as are reasonable to avoid that disadvantage.
Employment tribunal hearings routinely include detailed examination of an employer’s processes and actions, to assess whether the duty to make “reasonable adjustments” has been complied with.
The decision of the Employment Appeal Tribunal (“EAT”) in Hilaire v Luton Borough Council considers the issue of reasonable adjustments in the context of a redundancy process.
The employer was carrying out a restructure. A number of roles were deleted from the structure, however, (fewer) new roles were created. Those employees whose roles were redundant could apply for the new roles and be considered via a competitive interview (generally a legitimate way of proceeding where there are new roles to be filled).
Mr Hilaire was one of the employees whose roles disappeared. He had the right to apply for the new roles. He was off sick, but was also involved in other processes including grievances and a warning about absence. He had a disability (depression) and the tribunal concluded that the employer was aware of this disability. It was, therefore, obliged to make reasonable adjustments if any of its “PCPs” in relation to the redundancy process placed the Claimant at a substantial disadvantage.
The employer extended the time for Mr Hilaire to apply for the role, and also extended the deadline for him to attend an interview. He did not attend an interview and as such could not be given one of the new posts and was made redundant. He claimed disability discrimination, and the issue of a failure to make reasonable adjustments was at the heart of the EAT discussion.
The EAT decided:
- The tribunal had wrongly considered that the employer’s PCP, the requirement to attend, and do well at, an interview, would not place employees with a depressive illness at a disadvantage. The tribunal had wrongly concluded there could be no disadvantage because the employee could have attended. This was flawed – the question was not whether the employee could attend, but whether he was at a disadvantage in doing so. He clearly was at a disadvantage due to his depression, so the tribunal had got that wrong.
- However, on the issue of causation, it was not in fact, in this case, the PCP which prevented the employee attending the interview – he had lost trust in the employer and so would not have attended anyway. It was his decision not to attend which was the key factor.
- In any case, none of the further adjustments relied on by the Claimant would have been reasonable. A further short delay would not have been a reasonable adjustment as it would have made no difference – the Claimant’s health issues were significant and long term. Also, the other 13 employees who had been interviewed and were awaiting the outcome should not be disadvantaged by further delay; it was legitimate to take account of their interests too. To simply “slot in” the Claimant to one of the roles, without interview, or to adopt another method of assessment, would not have been reasonable. Other adjustments argued by the Claimant included providing interview training, providing support during the redundancy process, and resolving the other ongoing workplace issues. None of these were upheld as adjustments which the employer had been required to make.
- Therefore, the employment tribunal had been correct overall to conclude that there had been no failure to make reasonable adjustments.
While the employer successfully defended its position in this claim, the case is a good example of the complex nature of claims for failure to make adjustments, how these may arise during a redundancy process, and the wide range of adjustments which employees may argue should have been implemented.
It is important to note that just because a particular adjustment in this case was found to be unreasonable, it does not mean the same decision would be reached in any other case, where different circumstances may apply. We have little doubt that in some cases it could be successfully argued that it would be reasonable to assess a disabled candidate on a basis other than by competitive interview.
It is important to take advice about any redundancy process, and to give proper consideration to those with disabilities, how they may be put at a disadvantage by the process, and how that disadvantage could be removed.
If you have any questions in relation to redundancy, please do not hesitate to contact our specialist employment law team.
This update contains general information only and does not constitute legal or other professional advice.
Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012 / Connect with Douglas on LinkedIn
