An employment tribunal has recently found that the NHS subjected an employee to discrimination arising from disability and failed to make reasonable adjustments requiring him to undergo a competitive interview as part of a restructuring exercise. This was found in the Waddingham v NHS Business Services Authority case.
Facts
Mr Waddingham had worked in various roles for the NHS since 1984. In 2012 he was working for a Primary Care Trust (PCT) which was due to be abolished and replaced with a Commissioning Support Unit (CSU). The NHS put employees within the PCT, including Mr Waddingham, on notice that their jobs were at risk. A slotting in exercise was undertaken to move employees into the CSU structure where there was a role with a minimum 51% compatibility with the role undertaken in the PCT.
No one was slotted into the new role of Client Relationship Manager (CRM) (the closest match to Mr Waddingham’s existing role) and Mr Waddingham was given notice that he was at risk of redundancy. In the same month Mr Waddingham was diagnosed with throat cancer. Around a month later, Mr Waddingham started making enquiries about the CRM role and notified the CSU of his cancer diagnosis and that he was due to commence an 8 week treatment course.
Mr Waddingham was informed that he could submit a shortened application form for the CRM role (which was a grade lower than his previous role). In making arrangements for attending an interview, Mr Waddingham made the NHS aware that he was on a cocktail of drugs and that his voice was suffering. Aware that the restructuring had a timescale to it and anticipating his condition getting worse before it improved, Mr Waddingham suggested that he was fit to attend an interview.
The competency required for the CRM role was 75% and as Mr Waddingham only scored 54%, he was not offered the position and was subsequently made redundant.
The law
The relevant law in this case concerns an employer’s duty to make reasonable adjustments and not to treat a disabled employee unfavourably because of something arising from the disability. For the duty to make reasonable adjustments to arise, an employer must know or ought reasonably to know that the individual is disabled and likely to be placed at a substantial disadvantage because of their disability.
Claims in relation to discrimination arising from disability can be justified if the treatment can be shown to be a proportionate means of achieving a legitimate aim.
Outcome
The tribunal found in favour of Mr Waddingham on both claims.
Outcome – Reasonable adjustments
The tribunal found that the requirement to attend a competitive interview and to achieve a score of at least 75% were both provisions, criteria or practices which put Mr Waddingham at a substantial disadvantage. It was more likely than not that Mr Waddingham’s ability to prepare for his interview and his performance within it were adversely affected by his treatment and the fatigue stemming from it.
The NHS knew that Mr Waddingham was disabled but argued that they did not have sufficient knowledge that he was going to be at a substantial disadvantage to trigger the duty to make reasonable adjustments. Although Mr Waddingham had played down his symptoms and put a positive spin on his condition, the tribunal found that the interviewers should have realised that his ability to handle a competitive interview would have been impaired. A reasonable adjustment would have been to rely on evidence of performance in previous roles and by not doing so the NHS had failed to make reasonable adjustments.
Outcome – Discrimination arising from disability
Mr Waddingham was not given the role of CRM because of his poor performance at interview which had been adversely affected by his disability. The failure to appoint Mr Waddingham into the role meant he had been treated unfavourably due to something arising out of his disability (i.e. his poor performance at interview).
The NHS argued that even if Mr Waddingham had been discriminated against, selecting the best candidate for the job was a legitimate aim and that an objective and competitive assessment was a proportionate means of achieving that aim. Mr Waddingham agreed that this was a legitimate aim but disputed that the means were proportionate. In fact, the tribunal was unconvinced that selecting the best candidate was a legitimate aim and suggested that a more appropriate legitimate aim would have been to select a candidate capable of performing the role to the required standard. However, they found that, in any event, the competitive interview was not “proportionate means” as a different, more proportionate, assessment could have been carried out, such as reviewing evidence of past performance.
Comment
This case is a stark reminder to employers not only of their positive obligation to make reasonable adjustments but also of the need to plan carefully any process which involves a disabled individual.
The case is fact specific and without Mr Waddington’s long service, resulting in performance records, the outcome may well have been different.
It is however clear from the outcome that employers need to consider the likely impact of an individual’s disability and any treatment themselves rather than taking the individual’s word at face value. They then need to consider what adjustments would be reasonable, as well as considering what their aims are and whether the methods employed are proportionate means of reaching those aims.
Hazel Sanders is a paralegal and based in the employment team in Exeter. If you would like to contact Hazel, please call 01392 210700 or email employment@stephens-scown.co.uk.