In Hilaire v Luton Borough Council [2022], the EAT considered the extent of the employer’s Duty to Make Reasonable Adjustments

Under section 20(3) of the Equality Act 2010, where a workplace provision, criterion or practice [‘PCP’] puts a disabled person at a substantial disadvantage, the employer is required to take such steps as it is reasonable to have to take to avoid the disadvantage.

On Causation: In Hilaire, the EAT had to consider whether a redundancy selection process that required affected employees to participate in an interview for remaining posts amounted to a PCP that placed H (as a disabled person with depression causing memory and concentration difficulties) at a substantial disadvantage.

It concluded that H’s disability placed him at a more than minor or trivial (s20(3) EqA) disadvantage when considering his ability to participate in the interview.

Notwithstanding that conclusion, the EAT went on to consider whether the identified disadvantage was actually causative of any disadvantage. It found that it was not as H had sent an email stating ‘even if I wasn’t off sick with work related stress, causing depression, I still would not have attended this interview’.

In short, H’s decision not to participate in the interview process had nothing whatsoever to do with his being disabled or his facing a substantial disadvantage in the interview process.

Accordingly, the duty to make reasonable adjustments did not arise.

On Reasonable Adjustments: The EAT went on to observe that:

• Firstly, any necessary adjustments must avoid the disadvantage. Accordingly, any adjustments that do not have the potential to do so are not necessary adjustments.
• Secondly, the question of reasonableness remains an objective test. Reasonable adjustments exist to remove a disadvantage no to  convey a windfall advantage.

Key Points

When an employer is faced with a s.20(3) claim, it must consider:

1. Firstly – does the PCP in question place the disabled employee at a more than minor or trivial disadvantage.
2. Secondly –  whether, on the facts of the case, the employee’s inability to comply with the PCP is actually caused by the identified disadvantage (or, as in Hilaire, by something else entirely).
3. Thirdly –  if the duty to make reasonable adjustments arises, the employer can safely discount any adjustments that wouldn’t actually alleviate the identified disadvantage.
4. Finally – even where a step would alleviate the identified disadvantage, it must still be objectively reasonable. If the adjustment gives the disabled person an advantage over and above alleviating the identified disadvantage, it probably won’t be reasonable.

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Authors

Daniel Hobbs

Call 1998

Related areas

Employment

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