In Waddingham v NHS Business Services Authority, a former NHS employee was awarded £115,000 by the Tribunal for failure to make reasonable adjustments and disability discrimination. The case reminds us of the costly implications of not making the right reasonable adjustments, even where the employee may not have actually proposed any adjustments beyond what the employer had already put in place.
Mr Waddingham (C) started employment with the NHS in 1984 and worked in a variety of management roles. In December 2012 he was told that he was at risk of redundancy. He was also diagnosed with throat cancer and began radiotherapy treatment in January 2013. During this time, C enquired with his employer about applying for a new Client Relationship Manager position, he also informed them of his diagnosis and that he had been signed off sick for 8 weeks to undergo radiotherapy treatment. Taking C’s condition into account, HR allowed him to submit a shortened version of the application form for the role.
C was successful with his application and was invited to have an interview. HR told him that the competitive interview process would be arranged around his radiotherapy treatment. C requested that the interview take place sooner rather than later as he was concerned his voice would be affected by the ongoing treatment and the “cocktail of drugs” he had been prescribed to alleviate the pain. During the interview HR allowed C to take a break at any time and to stop the interview and rearrange it for another time if he wanted. C was happy to proceed with the interview as scheduled. The position required a competency level of 75%, however C scored 54% and therefore was not chosen for the post. In March 2013, C was dismissed and he bought proceedings for failure to make reasonable adjustments and discrimination arising from his disability.
On the face of it the employer made adjustments so C would be on a level playing field with non-disabled candidates. But the protection that section 20 of the Equality Act 2010 affords looks at whether the adjustment would have alleviated the disabled person’s disadvantage. The Tribunal upheld both of C’s claims. They found that it was likely C’s performance at the interview and his preparation would have been affected by the ongoing radiotherapy treatment and the pain relief he had been taking. Even without a medical report, the interviewers should have considered it was likely C’s ability during the interview process would have been hampered by his condition and the treatment he had received. The Tribunal took the view that it was not necessary for the interviewers to lower the pass mark which would allow C to succeed, but they could have assessed him on the basis of existing information which would have been available due to his long length of service.
The Trust tried to counter the disability discrimination claim with the defence that that the failure to appoint C had a legitimate aim of choosing the best candidate for the role. This failed because requiring C to attend the interview and reach a required standard was not a proportionate means of achieving this aim. Had HR amended the method of assessment than this finding may have been different.
It is important to remember that employers should look beyond comments that are made by job candidates with a disability about their ability to perform. The employer will have to make their own mind up on the effect of the individual’s medical condition on their ability to perform and how an adjustment might address that disadvantage. The duty to make reasonable adjustments potentially cuts across usual recruitment processes. So for example, if an employer only intends to select for a role with a competency-based interview which is not based upon previous knowledge and experience of the employee concerned, this approach may need to be modified if a disability means that the approach would put the disabled person at a substantial disadvantage.
0 Comments