In the case of Waddingham v NHS Business Services Authority, an Employment Tribunal decided that requiring a disabled employee to attend a competitive interview for a new role created as part of a restructuring process was a failure to make reasonable adjustments and discrimination arising from disability. The Respondent should, instead, have assessed the Claimant on the basis of what it knew of him from his lengthy past service.
Facts
The Claimant had been employed by the NHS since 1984. He was diagnosed with throat cancer in December 2012 and was therefore deemed to be disabled under the Equality Act 2010.
Earlier in the year, the Claimant had been notified that he was potentially at risk of redundancy as a result of a wider restructuring exercise within the NHS. The Primary Care Trust for which he worked was to cease to exist from 31 March 2013. The Claimant applied for an alternative role in the new structure and was asked to attend a competitive interview to assess his suitability for it. This role was seen as critical by the Respondent and so it decided that applicants needed to score at least 75% in the interview in order to be considered.
Because of the effects of his condition and treatment, the Claimant was having difficulty eating and speaking. He was also in ‘considerable’ pain, experiencing fatigue and had difficulty concentrating. Accordingly, there was correspondence between the Claimant and the Respondent’s HR team on how the interview process could work. The Respondent offered to delay the interview until the Claimant’s condition had improved, which the Claimant believed would be late April 2013 “at best”. Mindful of the end of March deadline, the Claimant said that he was happy to proceed, and attended an interview on 18 February 2013.
The Claimant received a score of 54% in the interview. He was therefore unsuccessful in his application for the new role and was made redundant. He subsequently brought claims against his former employer for discrimination arising from disability and a failure to make reasonable adjustments.
Legal background
Under the Equality Act 2010, a person (A) discriminates against another (B) if they treat B unfavourably as a result of something arising from B’s disability and cannot show that the treatment is a proportionate means of achieving a legitimate aim.
In addition, where a provision, criterion or practice (“PCP”) of A’s puts B at a substantial disadvantage compared with persons who are not disabled, A has a duty to take such steps as are reasonable to avoid that disadvantage.
Decision
The Claimant was successful in both of his claims.
The Employment Tribunal (“ET”) said that requiring the Claimant to attend a competitive interview was a PCP which placed him at a substantial disadvantage in comparison with persons who were not disabled. The Respondent therefore had a duty to make reasonable adjustments. Although the Claimant had said that he wished to go ahead with the interview and put a positive spin on his condition, this had to be viewed in the context that he faced losing his job at the end of March 2013 and so the Respondent’s duty was not discharged.
On the facts, the ET decided that it would have been a reasonable adjustment for the Respondent to have considered the Claimant for the role on the basis of his past performance, rather than requiring him to attend a competitive interview. However, the ET also said that it would not have been a reasonable adjustment to lower the pass mark, as to do so would have made the competitive process a ‘pointless exercise’. They also did not consider that it would have been a reasonable adjustment to wait until the Claimant was better before conducting the interview, because it accepted the Respondent’s evidence that the role needed to be filled urgently.
The Claimant had conceded that the Respondent had a legitimate aim of finding the best candidate for the role. However, the ET considered that, given that it would have been possible to assess the Claimant on the basis of his past performance, the requirement to attend a competitive interview was not a proportionate means of achieving that aim. The ET also expressed doubt about whether finding the ‘best’ candidate for a role could be a legitimate aim, and considered that a more appropriate aim could be finding a candidate who could perform the role to the required standard.
Comment
This case is a useful reminder of the employer’s duty to make reasonable adjustments and the importance of making their own assessment of the situation rather than relying on the employee. Where there is a risk of a PCP placing a disabled employee at a disadvantage employers should always consider whether there is an alternative way of proceeding which will not have that effect, as here.
It is worth noting however that the outcome in this case may well have been different had the Claimant been a new applicant rather than an existing employee or if he had a shorter period of service on which to base an assessment.