Case alert: Failure to interview disabled employee amounted to disability discrimination


What happened?

In London Borough of Southwark v Charles, the EAT decided that the London Borough of Southwark (the "Borough") had failed in its duty to make reasonable adjustments when it refused to assess by other less formal means the suitability of a disabled candidate who was unable to attend an interview because of his disability.

Mr Charles and other employees were told that their jobs with the Borough were redundant, but that they could apply for certain other positions which were ring-fenced for them by the Borough. Mr Charles, who suffered from a sleep disorder and depression, was then signed off sick.

While he was on sick leave, the Borough sent details of vacancies to Mr Charles and asked whether he was able to interview for the posts. However Mr Charles's illness prevented him from attending interviews and he was not hired for any of the available positions. Mr Charles was subsequently dismissed and then brought a disability discrimination claim against the Borough in relation to its failure to make reasonable adjustments to accommodate his disability.

The EAT decided that the Borough had a 'practice' of requiring candidates to attend interviews which placed Mr Charles at a substantial disadvantage. Mr Charles's disability prevented him from attending interviews and demonstrating that he was suitably qualified for a job in which he had expressed an interest.

What does this mean?

Although employers may have a legitimate aim in holding an interview process to select employees for jobs, the Borough's requirement for a formal interview was not a proportionate means of achieving that aim in relation to a disabled person.

The Borough knew that Mr Charles was disabled and the Tribunal noted that the Borough could have considered other alternatives to a formal office interview such as conducting the interview at Mr Charles's house or even consulting Mr Charles's managers (especially as Mr Charles was applying for a post two grades below his current grade).

The EAT also clarified that it does not automatically follow from the Borough's failure to make reasonable adjustments to its practice of holding formal interviews that Mr Charles should have been given the job. The Borough should have simply assessed his suitability for the role by some other means.

What should we do?

Employers should be flexible when considering how they hire and also dismiss people with a disability. This case highlights that traditional methods will not always be appropriate.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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