Disability 'should not be used to give employees an advantage'

A youth support worker has lost his disability discrimination claim because a tribunal ruled that the law was only designed to protect disabled workers against unfair treatment, it was not intended to give them an advantage over their colleagues.

The case involved Mr Hilaire, who worked for Luton Borough Council in the youth support department. He suffered from arthritis and moderately severe depression, of which the local authority was aware. The cumulative effect of his disabilities caused him memory and concentration problems, low mood and persistent difficulty in normal social interaction. 

In 2013, due to funding cuts, the authority decided to restructure the department. It began a collective redundancy process. Employees who wished to work in the new structure had to apply for a position and attend an interview. Hilaire was off sick during the consultation in the redundancy process. At the same time, he was dealing with grievances he had raised about pay, bullying and a warning he had received for sickness absence. The authority allowed extra time  for him to apply for a role in the new structure and invited him to an interview. He was unable to attend because of continued ill health. The authority extended the time  further but set a deadline of 19 days, as 13 other candidates had been interviewed for roles and were awaiting an outcome. 

Hilaire did not attend an interview. He complained that the local authority should have made reasonable adjustments for his disabilities under the Equality Act 2010 instead of expecting him to attend an interview. The Employment Tribunal found that the authority had applied a provision, criterion or practice (PCP) of requiring Hilaire to attend an interview. However, it concluded that the PCP had not placed him at a substantial disadvantage. It found that he could have engaged with the process but that he chose not to because he believed that the interview process was just a means of managing and disguising the reason for his dismissal, and he would not have attended the interview even if he was not off sick. The tribunal also found that the local authority had made adjustments for him in allowing extra time for his application and interview, and that there was no other step that would have been reasonable for it to have taken.

The Employment Appeal Tribunal upheld that decision. It noted that Hilaire submitted that the authority should have slotted him into another role without the need for interview. Objectively, such a step would have alleviated the disadvantage to him. However, it was a step that would have impacted on others who had taken part in the selection process. Making a reasonable adjustment was not a vehicle for giving a benefit over and above removing the disadvantage. 

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