Disabled employees: Employers need to be proactive

Employees iStock 000005305116XSmall 146x219A disabled employee of a London borough who was unable to attend administrative meetings has recently had his claim for disability discrimination upheld. Martin Cheyne and Emma Laing analyse the case and look at the lessons to be learned.

In the case of London Borough of Southwark v Mr G Charles an employee at risk of redundancy, who was required by his employer to attend an interview for alternative roles after his position within the organisation was “deleted” has had his claim for disability discrimination upheld by both the Employment Tribunal and Employment Appeal Tribunal.

Mr Charles suffered from a disability that meant he was unable to attend administrative meetings and it was held that the requirement for him to attend interviews (within the redeployment process) amounted to discrimination arising from a disability and a failure to make reasonable adjustments.

The facts

Mr Charles was informed in March 2011 that he was at risk of being made redundant. In April 2011 he unsuccessfully interviewed for an alternative post and was placed into the redeployment pool.  In May 2011 he was informed he would be made redundant. Shortly after this, he was signed off sick by his GP with a sleep condition resulting in depression. An initial Occupational Health Report stated that no adjustments were required.

An email was sent to Mr Charles (as part of the redeployment pool) at the end of May 2011 offering interviews for posts. Mr Charles failed to confirm his interest in any of the posts. In June 2011 Occupational Health reported that Mr Charles could not attend administrative meetings (which the ET and EAT found included interviews). Further opportunities were emailed to Mr Charles at the end of August and he was asked when he would be able to attend interview. No expression of interest was received, nor response to the question about attending an interview. Occupational Health were asked to determine his ability to attend interview, but were unable to contact him as his phone was turned off.  

As no expression of interest in the posts, nor indication from Mr Charles as to when he could attend interview, was received he was given notice of his dismissal on 25 August 2011. He appealed this decision by detailed letter, but his appeal was dismissed. He then brought an ET claim against his employer for disability discrimination (amongst others).

ET and EAT decision

The ET and EAT found that the requirement for those in the redeployment pool to attend interview put Mr Charles at a substantial disadvantage as it meant he could not demonstrate to his employer that he was qualified for the jobs he might have applied for. His employer failed to make reasonable adjustments by using alternative methods to determine Mr Charles’ suitability for the posts, such as the use of informal interviews or consultations of his managers. It was not relevant that Mr Charles had not expressed an unequivocal interest in a post.

What does this mean?

The case demonstrates the highly proactive approach required by employers of disabled employees and is evidence that the requirement to attend interview could potentially disadvantage a disabled employee. Whilst appointment to the post is not automatically required, it will be for the employer to determine how to assess the disabled employee if a requirement for interview would place them at a disadvantage. Inviting expressions of interest, in readiness for interview, is not enough.

Martin Cheyne and Emma Laing both work in the employment team of health and social care solicitors, Hempsons. Martin is a partner and Emma is a trainee solicitor.