In Hilaire v Luton Borough Council the UK EAT found that it was not a reasonable adjustment simply to slot a disabled employee into a new organisational structure as part of a redundancy exercise. Although this would have alleviated disadvantage to the employee, it would have impacted on other staff who had taken part in the redundancy selection process.

In Hilaire v Luton Borough Council, the employer conducted a redundancy exercise in which employees who were at risk of redundancy could apply for posts in the new organisational structure. They would then attend a ring-fenced interview for the relevant post. Mr Hilaire was disabled because of his depression. He argued that the requirement to attend an interview put him at a substantial disadvantage because of his disability. It would have been a reasonable adjustment to offer him a post in the new structure without requiring him to attend an interview.

Contrary to the tribunal’s view, the EAT found that the requirement to attend an interview was a provision, criterion or practice (PCP) that put him at a disadvantage because of his disability. The medical evidence showed that he had problems with his memory, concentration and social interaction, which would at least hinder his participation in the interview process. The issue was not simply whether he could attend an interview as the tribunal thought, but whether he could participate fully in it. The tribunal should have recognised that and considered whether the limitations on his ability to participate were substantial in the sense of being more than minor or trivial. However, as the evidence showed that the employee would not have attended an interview anyway, for reasons unconnected with his disability, his claim failed.