UK: employers may need to consider adjustments to redundancy selection process for disabled employees, but can take into account impact on other at-risk employees

Employers may need to consider adjustments for employees with mental impairments when using interviews to select for redundancy, but this will not necessarily require the employee simply to be slotted into an available alternative role without interview, where this would impact on other at-risk employees.

In Hilaire v Luton Borough Council, the EAT ruled that the employee claimant’s problems with memory, concentration and social interaction, caused by his depression, would probably hinder effective participation in an interview and therefore the employer had a duty to consider whether there were reasonable adjustments that would alleviate the disadvantage suffered.

In some cases it might be a reasonable adjustment to delay the interview process for a short period to allow an employee’s condition to improve, or potentially to consider other methods of selection.  However, in this case the employee had a significant impairment from which recovery would be protracted, such that a short delay would not alleviate the disadvantage. Further, the tribunal was entitled to accept the employer’s evidence that it was not feasible to adopt a different selection method, given it had been agreed with the union.

The claimant argued that it would have been a reasonable adjustment to simply slot him into a role without interview.  The EAT ruled that there was no error in the tribunal’s rejection of this argument. The selection process had been applied to 13 employees and prioritising the claimant would have impacted on these others.  In this case, the tribunal was entitled to consider that, given the surrounding circumstances and impact on other employees, no step, including slotting in, would be a reasonable step for the employer to have to take.  Making a reasonable adjustment is not a vehicle for giving an advantage over and above removing the particular disadvantage.

(The EAT also upheld the tribunal’s conclusion that the claimant would not have taken part in the interview for reasons unconnected with his disability, so he failed on causation in any event.)