A youth and community worker was put at a disadvantage when he was asked to attend a redundancy interview, but the Employment Appeal Tribunal (EAT) found removing this requirement would have been unfair to others in the same process.
The EAT stated that a lower tribunal had correctly determined that Luton Borough Council could not have made accommodations for Julian Hilaire, who experienced depression and arthritis, during his collective redundancy process.
Employment judge Wayne Beard said: “Slotting in [to a new role] would have alleviated the disadvantage to Mr Hilaire, but would have impacted on others in the redundancy process. Making an adjustment is not a vehicle for giving any advantage over and above removing the particular disadvantage.”
Hilaire, a youth and community worker at Luton Borough Council, was informed in 2013 that the organisation would be restructuring its youth support system, and part of this process required those working in the new structure to apply for a post.
The tribunal was informed that money was being cut and that the local authority’s decision regarding which employees to retain depended on timing. To be considered for the jobs that were open at the time of the redundancy procedure, workers would be required to go to an interview.
The tribunal noted that Hilaire struggled with the redundancy process even during the application stage, and that his arthritic condition was a contributing factor in his moderately severe depression. Hilaire also had a somatic syndrome, which indicated that his depression was partly brought on by his focus on physical pain.
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The tribunal heard that Hilaire was given an extension for providing an application form after complaining that he had not received support after being absent from work because of ill health during the consultation in the redundancy process, and that “he was bogged down in paper and had no time to deal with the organisation change matter.”
Hilaire's application deadline was changed from 12 August to 23 August 2013, and he received some assistance in completing the application form.
On 4 September, Hilaire received an invitation to an interview. He declined, stating that his sick leave would be extended by one month by a fresh GP sick note, and that he would be unable to attend any meetings or interviews.
Hilaire was then contacted by the council and asked when he would be free to attend the interview and was offered reminders, but he didn’t reply.
A deadline of 23 September 2013 was set for the interview, with 13 candidates already having interviewed and awaiting a decision. The council maintained that it needed to interview Hilaire to ensure the process was fair.
On 20 September, Hilaire wrote to his employer stating that he was too ill to attend the interview. The tribunal heard that Luton Borough Council applied a provision, criterion or practice (PCP) requiring Hilaire to attend an interview and he attended a formal meeting on 27 September, where he successfully appealed against a written warning for sickness absence.
The tribunal found that Hilaire had the option to participate in the proceedings “if he so desired” but he was “unwilling to”, and that, in an email exchange with the council, he said: “Even if I wasn’t sick with work-related stress, causing depression, I still would not have attended this interview.”
Hilaire also claimed in the email that he had emails from “lower, middle and senior management and HR” staff that allegedly revealed the local council was “conspiring” to fire him because of his illness. He also claimed that some of those managers were participating in the interview process.
The tribunal heard that whether or not it acknowledged Hilaire as a disabled person, the council had taken into account his health and made a concerted effort to involve him in the process, offering him “extra support over others”.
The tribunal concluded that Hilaire “was not going to attend these interviews”, so in the light of these facts he was not placed at a substantial disadvantage by the employer's PCP. However, while evaluating Hilaire’s appeal, the EAT determined that the lower tribunal committed a mistake. "The tribunal engaged in a binary choice whether the claimant may take part in the interview or not; that is not the correct method," it was stated in a judgment.
It went on to say that the "relevant matters are the impacts of the disability", which make it harder for a disabled employee to meet an expectation of the employer PCP, and that Hilaire's memory, focus and social interaction concerns would "at least hinder effective participation" in the interview.
But despite this, the tribunal agreed that Hilaire would not have taken part in the interview, and would not have done so for reasons unconnected to his disability, “therefore it was not an effect of his disability which prevented the claimant from complying with the PCP, it was the choice he made because of his belief” that the organisation was trying to dismiss him because of his absence record.
Additionally, it stated that the council could not have avoided harm because the little delay that was given to the interview date could not be viewed as an adjustment to the situation.
Hilaire argued that the organisation should have “slotted” him into the role without an interview, but this was dismissed.
Judge Beard said that given the surrounding circumstances and impact on other employees, no step, including slotting in, would be a reasonable step for the respondent to have to take, and on that basis the appeal was dismissed.
David Jepps, employment partner at Keystone Law, said HR practitioners needed to look very closely at how redundancy processes might be “adjusted where disabled employees are involved”, being aware of adjustments that may negatively impact other employees, with the disabled employee gaining an advantage beyond remedying a disadvantage in the process.
Alan Lewis, employment partner at Constantine Law, said the key lesson to be learned from this case was that an “adjustment is not reasonable” if it eliminates the substantial disadvantage for the disabled employee while giving them an advantage over other employees in the process.
Luton Borough Council has been contacted for comment. Hilaire could not be reached.