Case update (1): Disability discrimination – reasonable adjustments

Summary: Do 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?

Yes, says the Tribunal in Waddingham v NHS Business Services Authority.

Facts: The employee, Mr Waddingham, had worked in the NHS since 1984 but following a reorganisation his role became at risk of redundancy. Shortly after this Mr Waddingham was diagnosed with throat cancer and began radiotherapy. He was issued with a fit note indicating that he was not fit for work for eight weeks due to his treatment. While off sick he asked about applying for a new role. The particular role he enquired about was the nearest equivalent position in the new system to his old role. Due to his illness Mr Waddingham was allowed to submit a shortened application, but he still had to attend a competitive interview. Mr Waddingham was unsuccessful at interview and was dismissed.

Mr Waddingham brought a Tribunal claim for disability discrimination. The Tribunal found that the employer had failed to make reasonable adjustments. While it was necessary to have some form of assessment this should have been carried out on the basis of existing performance data e.g. appraisals from previous posts. This was the case even though Mr Waddingham had indicated that he wanted to proceed with the interview and was told that he could take a break at any time or that he could stop the interview and rearrange it if necessary. However, the Tribunal confirmed that the employer was not obliged to lower the interview pass mark to accommodate Mr Waddingham’s impaired performance.

The failure to appoint Mr Waddingham also amounted to disability discrimination. He was unsuccessful because of his poor performance at interview, which was adversely affected by his condition. The Tribunal found that requiring Mr Waddingham to attend the interview and to obtain the required standard was not a proportionate means of achieving the employer’s stated aim of selecting the best candidate for the job. The assessment could have been carried out through more proportionate means. The Tribunal also commented on the employer’s aim and thought that a more appropriate aim may be to appoint a person who could perform to the required standard.

Implications: A good reminder 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. The employer should have taken into account the effects of the employee’s medical condition and the treatment on his ability to perform at interview – particularly given this employee’s long length of service.