Case law | Mr J Hilaire & Luton Borough Council

EAT 23 November 2022

• How far does an employer need to go to level the playing field for an employee who is disadvantaged? 
• If an employer’s reasonable adjustments don’t fully alleviate a disadvantage, has it failed in its duty under the Equality Act s20?

Julian Hilaire worked in the council’s Youth Support department. He suffered from several conditions that amounted to a disability. 

Specifically he suffered from a form of depression connected to suffering the pain of arthritis and this impacted on his sleep, social engagement, motivation, concentration and mood.  

The department was to be reorganised with the loss of some roles and Mr Hilaire was given an extension of several weeks past the official deadline for submitting his application for one of the new roles. 

The department was to be reorganised with the loss of some roles and Mr Hilaire was given an extension of several weeks past the official deadline for submitting his application for one of the new roles. 

This was because he had been off sick during part of the consultation. He also received some additional help with the application process.  

He was invited to an interview on 4 September 2013 but responded to say that he had a renewed doctor’s note, would be off sick for a further month and would be unable to attend any interviews or meetings during this time. 

The respondent, who had a further 13 applicants for the role, wrote to Mr Hilaire and asked when he would be able to attend. Despite several reminders he did not respond. Other candidates were interviewed and awaited an outcome. 

The council considered whether there were any alternatives to interviewing Mr Hilaire in terms of making a selection but concluded that would be unfair to other candidates.  

On 20 September, he advised that he was too sick to attend an interview.  However, on 27 September he then attended an appeal hearing regarding an earlier warning for absence related issues.

The employment tribunal concluded that the council had created a ‘provision, criterion or practice’ (‘PCP’) of requiring the claimant to attend an interview. 

However, they found that he had declined to attend not because of his health or disability but because he ‘did not want to’.  

They based this finding on an email he wrote on 3 October in which he made clear his disengagement from the process and his belief that he was being discriminated against and that the council wanted to dismiss him. 

Crucially, he wrote, “even if I wasn’t off sick with work related stress, causing depression, I still would not have attended this interview.”

ET Decision

The ET found that the claimant had not been placed at a substantial disadvantage by the requirement, or PCP, to attend an interview, and that there were no further reasonable adjustments that could have been made. 

Employment Appeals Tribunal

Mr Hilaire appealed to the EAT on wide ranging grounds. However, the single issue that was allowed was that of considering whether the tribunal had correctly approached the claim of a failure to make a reasonable adjustment. 

The legislative points under consideration were sections 20 and 21 of the Equality Act. Section 20 sets out that the duty to make reasonable adjustments includes a requirement for an employer to take reasonable steps to enable a disabled person to avoid the disadvantage conferred on them by a PCP.  

Section 21 says that a failure to do so amounts to a failure to make reasonable adjustments, and that this amounts to disability

The claimant believed that an effective adjustment would have been for the council to have ‘slotted him in’ to the new structure without the requirement for competitive interview.

The EAT observed that Mr Hilaire’s disability would indeed have hindered his effective participation in the interview and that this of course placed him at a disadvantage. 

However, to have simply given him the role went beyond a reasonable adjustment and instead amounted to favouring him above other candidates. 

The law requires that disadvantage be eliminated, not that advantage be given. The council had offered to delay the interview for him, but the claimant’s condition was a long standing one and it was not apparent that waiting for a few weeks would have either been practicable or would have removed the disadvantage.  

Nonetheless, it concluded, the reason that the claimant did not attend the interview was not because his disability prevented him, but because of his suspicion of his employer. There were other issues rumbling in the background including a grievance that added to this.

However, the EAT did find that the tribunal had erred in one finding.  It had taken a ‘binary’ approach to deciding whether Mr Hilaire was or was not able to participate in the interview. 

The correct approach was to consider his disadvantage in comparison with ‘persons who are not disabled’. 

Key takeaways from this case

While it may sometimes be appropriate to give a role in a new structure to an employee who would otherwise suffer some disadvantage, including loss of employment, that is not always the case.   

While it’s important to ‘level the playing field by making adjustments, there is no requirement to confer advantage.