The recent decision of the EAT in London Borough of Southwark v Charles is a timely reminder of the scope of an employer’s obligations to make reasonable adjustments for disabled staff and the liability for claims of discrimination arising from a disability under section 15 of the Equality Act.
Mr Charles worked for Southwark as an Environmental Enforcement Officer from 2008 until 2011 when the local authority decided on a reorganisation which resulted in the redundancy of his role. There were various alternative positions and in the first instance Mr Charles applied for one of these but was not successful.
As is common in local authorities he was then placed in a redeployment pool which allowed three months for him to be found an alternative post. During the redeployment period Mr Charles was served with formal notice that his employment would end on 3 August 2011 if he was not allocated an alternative post.
So far so good but whilst in the redeployment pool period and after he had been served with notice Mr Charles became ill and was signed off work for a 3 month period.
Mr Charles was referred to Occupational Health twice during the 3 month period – on the first occasion OH reported that no adjustments were required at that stage but on the second occasion in June 2011 the authority was told that Mr Charles was not fit to attend administrative meetings.
After the second OH report Mr Charles was sent an email about a potential vacancy which said “If you are interested in the above opportunity, can you let me know when you feel that you would be well enough to attend an interview”. He responded and expressed interest but raised concerns about working shifts and unsocial hours – he was reassured that if successful at interview reasonable adjustments would be considered.
After this Mr Charles’ dismissal date was extended by some weeks and he was emailed about other vacancies. No further replies were received from him and accordingly on 25 August he was advised that his employment would end on 26 August as the letter put it “in the absence of receiving an expression of interest from you regarding vacancies” and “no indication as to whether you are able to attend interviews”.
Mr Charles appealed his dismissal but this was confirmed. He then brought claims for unfair dismissal and disability discrimination. The Tribunal dismissed the unfair dismissal claim finding that there was a genuine redundancy and that there had been adequate consultation and information about alternative posts. However, in various respects the local authority’s behaviour was found to be discriminatory.
What had the employer done wrong? At the point when the second OH report was received the authority knew that Mr Charles was disabled (this was not disputed) and in particular were aware that he could not attend administrative meetings, which the Tribunal decided included interviews. In the light of those matters the authority should have sought other ways to consider his suitability for alternative posts. The failure to do this resulted in the Tribunal finding in Mr Charles’ favour in relation to claims under both sections 15 and 20 of the Equality Act.
For the purposes of the section 20 claim it was found that the requirement to attend an interview was a practice and one that put Mr Charles at a substantial disadvantage in comparison to persons who are not disabled. Accordingly the authority was obliged to take reasonable steps to avoid the disadvantage.
In relation to the section 15 claim the authority had imposed a requirement that Mr Charles attend for interview if he wished to be considered for a post and so treated him unfavourably because of something arising from his disability.
Although the EAT agreed with the vast majority of the findings made by the Tribunal there was one exception. This was as to the disadvantage that Mr Charles had suffered which should have been the subject of reasonable adjustments. The Tribunal thought that this was his dismissal. However, as the EAT pointed out if the authority had met its obligations there was no guarantee that Mr Charles would then have been appointed to one of the available positions.
This case is very fact specific but shows the necessity for employer to think carefully about how in practical terms they fulfil their obligations towards disabled employees. It is not sufficient to be sympathetic or to make OH referrals just to establish that an individual is disabled. What is required is a logical analysis of what the individual can and cannot do, followed by seeking imaginative solutions as to how any disadvantage can be overcome. In this case the authority appears to have given no thought as to how Mr Charles might have been assessed for vacancies other than through a formal interview process. He could have been offered a less formal interview at home or his skills and abilities assessed by other means.
Other blogs on disability discrimination include: