September 17, 2014

Disability discrimination – failure to make reasonable adjustments

The employee was put at risk of redundancy and interviewed unsuccessfully for another role. He was then asked to join the redeployment pool which would give him 3 months to find another position.

An alternative role came up but the Claimant did not express any interest. He was off sick for some time and the employer contacted him to find out if he was well enough to attend an interview and to let them know when he was. When he enquired about the post they advised him that it involved shift work but that reasonable adjustments could be made if he was successful at interview. He could not be contacted when they attempted to do so to find out if he was well enough to attend interview and he did not reply to emails. Consequently, since they could not reach him to determine whether he was interested in applying for the role, his employment was terminated on the grounds of redundancy.

The EAT went on to point out that making an adjustment around interviewing for a role would not automatically conclude that the individual would have been appointed. This would have to be subject to evidence and submissions at a remedy hearing. Here, the employee argued that he could have been interviewed at home rather than in the workplace or could have provided information in advance as part of a less formal process. He had been employed for several years by the borough and so his managers could have been consulted about his suitability, especially for a post which was two grades below his current one. Reading the Judgment synopsis, this looks quite a surprising decision because it appears on the face of it, that the employer made a considerable effort to communicate with the employee to try to redeploy him.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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