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Disability discrimination - reasonable adjustments during a redundancy exercise

Is an employer obliged to make reasonable adjustments for a disabled employee during a redundancy exercise, including dispensing with the need for an interview for redeployment? Yes, said the EAT in London Borough of Southwark v Charles.

Background

Under the Equality Act 2010 (EqA 2010) an employer is under a duty to make reasonable adjustments where it applies a provision, criterion or practice (PCP) that puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled.

Discrimination arising from disability occurs where a person is treated unfavorably because of their disability and the treatment is not a proportionate means to achieving a legitimate aim.

These provisions are designed to implement Article 5 of the Equal Treatment Directive which says that employers shall:

"…take appropriate measures where needed in a particular case, to enable a person with a disability to have access to, participate in or advance in employment, or to undergo training unless such measures would impose a disproportionate burden on the employer."

Facts

The claimant in this case, Mr Charles, was employed by London Borough of Southwark (Southwark) as an Environmental Enforcement Officer.

In March 2011, the claimant's role was made redundant. Having been unsuccessful following an interview for a redeployment role, the claimant was asked to join the redeployment pool, which would give him three months to find an alternative post.

The claimant was told his role would terminate as of 3 August 2011.

On 13 May 2011, the claimant was signed off work for a period of three months with sleep paralysis agitans, which subsequently led to him suffering depression.

Having referred the claimant to occupational health, Southwark were advised on 17 June 2011 that the claimant was not fit to attend administrative meetings.

The claimant was contacted on several occasions during July and August about the post of Noise Support Officer. Southwark asked the claimant when he might be well enough to attend an interview and confirmed also that if he was successful at interview, Southwark would consider what reasonable adjustments could be made in order for him to carry out this role. As the claimant did not respond, Southwark asked their occupational health provider to confirm whether or not the claimant was well enough to attend an interview. The claimant failed to respond and Southwark therefore confirmed that his employment would terminate on 26 August 2011 "in the absence of receiving an expression on interest from you regarding vacancies" and "no indication as to whether you are able to attend interviews".

The claimant appealed his dismissal and the appeal was dismissed. He subsequently brought a claim for unfair dismissal and disability discrimination, for failure to make reasonable adjustments and discrimination arising from disability.

The tribunal rejected the claimant's unfair dismissal claim on the basis that there had been adequate consultation and he had been given the opportunity to apply for alternative roles. The tribunal did however, uphold his claim for disability discrimination because Southwark had known that, as a result of the claimant's disability, he was unable to attend administrative meetings (which included the redeployment interviews) and had failed to make a reasonable adjustment by not requiring the claimant to attend interviews.

Southwark appealed.

EAT

The EAT dismissed the appeal on the basis that Southwark knew that the claimant's disability prevented him from being able to attend administrative meetings. Therefore, the requirement for those in the redeployment pool to attend an interview was a practice which put the claimant at a substantial disadvantage, as he would be unable to attend. The EAT therefore held that Southwark had failed to make reasonable adjustments by, for example, holding a less formal interview process or allowing him to be interviewed at home.

Using the same rationale, the EAT also found that Southwark had treated the claimant unfavourably because of something arising as a result of his disability.

The EAT did say however that assessing the claimant's suitability for a redeployed role using something other than a formal interview, did not mean that the claimant would automatically be appointed to that role.

Comment

This case highlights that a requirement for employees to attend an interview could potentially disadvantage a disabled employee. Employers will need to consider what reasonable adjustments could be made in order to assess disabled employees alongside other employees in order to avoid putting them at a substantial disadvantage. For example, consider a less formal interview process, or holding an interview with a disabled employee in their home.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2014. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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