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Provision, Criterion or Practice

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Could requiring a disabled employee to attend a redundancy selection interview amount to a substantial disadvantage?

Yes, held the EAT in Hilaire v Luton Borough Council.

The tribunal found that the relevant provision, criterion or practice ('PCP') applied by the Respondent was that of requiring the Claimant to attend an interview. The tribunal then concluded that this PCP did not place him at a disadvantage as he could have engaged with the process if he had wanted to do so, but he chose not to attend as he believed managers were conspiring to dismiss him.

The EAT held that the tribunal applied the wrong test when considering disadvantage; it had approached the matter on a binary basis by considering whether the Claimant was capable of attending and not considering whether it was more difficult for the Claimant to attend because of his disability. From the tribunal’s findings, the Claimant had problems with memory and concentration and with social interaction. It was obvious that such problems would, at the least, hinder effective participation in the interview, when compared with persons who were not disabled.

However, the tribunal had still been entitled to dismiss the claim on the basis that the PCP did not cause the disadvantage, as it was the Claimant’s loss of confidence in the Council that prevented him from attending the interview.

Thanks to Tim Kenward of 7 Harrington Street Chambers for preparing this case summary.