In a recent case (Waddingham v NHS Business Services Authority), the Employment Tribunal provided helpful guidance on the sort of reasonable adjustments that should have been made for a disabled employee involved in a competitive interview process.
The case confirms the positive obligation on employers to consider what adjustments may be reasonable, regardless of the wishes of the disabled person or comments that they may make.
The claimant’s role with his employer was put at risk of redundancy. There was no directly equivalent role for him and so unless he was able to secure a new internal role, he would be made redundant.
At the same time as being put at risk of redundancy, the claimant was diagnosed with throat cancer. Whilst undergoing radiotherapy treatment he enquired about applying for a new role and also made his employer aware of his diagnosis.
He was subsequently invited for an interview for the new position and was told that this could be arranged around his health condition. The claimant indicated that he wanted to proceed with the interview, despite the cancer treatment he was undergoing and the existence of a fit note indicating that he was not fit for work. He put a positive spin on his illness, underplaying the effects, and wanted to meet sooner rather than later, mindful of the fact that he would not be fully better until after the date on which his role would otherwise be made redundant.
At the interview, the claimant was told that he could take a break at any time, and that he could stop and rearrange it if necessary. However, the interview took place and his resulting score did not meet the required competency level, which meant that he was not appointed to the post. He was subsequently dismissed for redundancy and later brought claims for failure to make reasonable adjustments and discrimination arising from his disability.
The claimant was successful with both of his claims.
The duty to make reasonable adjustments arises where a disabled person is placed at a substantial disadvantage by an employer's provision, criterion or practice (PCP). As the claimant had cancer he was deemed disabled for the purposes of the relevant legislation.
The Tribunal found that there were two PCPs that put the claimant at a substantial disadvantage when compared to persons who were not disabled. They were:
The Tribunal felt that even without particular specialist knowledge, anyone with the information that the claimant had supplied could reasonably be expected to have thought it likely that his ability to deal with a competitive interview process and perform to his best ability would be adversely affected by the cancer treatment and its effects. If they did not know this, then they were put on notice to make further enquiries.
The fact that the claimant put a positive spin on his condition in circumstances where he knew he faced losing his employment did not absolve his employer from its obligation to consider properly whether he would be put at a disadvantage and whether any reasonable adjustments were needed.
In terms of the reasonable adjustments that should have been made, the Tribunal found that it would have been reasonable to assess the claimant for the role without a competitive interview on the basis of other material, such as appraisals, available from his long service.
However, the Tribunal expressly stated that it did not expect the employer to have:
The Tribunal also found that the failure to appoint the claimant to the role amounted to discrimination arising from his disability. Such a claim can be made where an employer treats an employee unfavourably because of something arising in consequence of the employee’s disability, and the unfavorable treatment is not a proportionate means of achieving a legitimate aim.
The Tribunal found that the reason the claimant had not been appointed to the role was because of his poor performance at interview, which had been adversely affected by his condition. Whilst his employer argued that any discrimination was justified by the legitimate aim of selecting the best candidate for the job, the Tribunal doubted whether this could be a legitimate aim given the fact that a disabled candidate can lawfully be given more favourable treatment than a non-disabled candidate. In any event the Tribunal was unconvinced that requiring him to attend a competitive interview and obtain the 75% score was a proportionate means of achieving the stated aim.
This case clearly shows that employers have a positive obligation to consider what adjustments may be reasonable when dealing with a disabled person, regardless of the wishes of the disabled person or comments that they may make. Whilst the claimant here put a "positive spin" on his condition, this was understandable given that he was facing redundancy and keen to secure a new role. His employer should not have accepted his comments at face value and should have made further enquiries as to his medical treatments and the effect this would have on his performance at interview.
However, the outcome may have been different had the claimant not been an existing employee with a long service record. Whilst the Tribunal found that a reasonable adjustment would have been to assess the claimant for the role on the basis of other material available from his long service, it did not consider any other 'adjustment' a reasonable one. As such, in situations where applicants are not long standing employees, whilst there is a duty to consider whether reasonable adjustments are required, an employer may find that there are no reasonable adjustments to be made.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2015. Specific advice should be sought for specific cases. For more information see our terms & conditions on www.TLTsolicitors.com