Case update (3): Disability discrimination

Summary: Does an employer breach its duty to make reasonable adjustments by requiring a disabled employee to undergo a competitive interview process?

Not in all cases, says the EAT in Wade v Sheffield Hallam University available here.

Facts: Ms Wade suffered from an allergic condition which constituted a disability. Following a reorganisation at the University, Ms Wade’s role was deleted and she applied for a new post in 2006. She was unsuccessful on two essential criteria. However, the post became vacant again two years later, by which time she had been told that the job she had been doing no longer existed and that, as a result, she would be given priority for the alternative post, albeit that she was required to undergo a competitive interview process. Ms Wade was unfortunately not successful in her application. The University concluded that she was “not appointable” and explained how, in interview, she had not demonstrated that she met the relevant criteria.

Ms Wade brought a claim of disability discrimination. She complained about having had to go through the competitive interview process; she felt an adjustment should have been made, given her disability and lengthy absence from work, to waive this requirement. Ms Wade sought to rely on the 2004 case of Archibald v Fife Council in which the House of Lords decided that dis-applying a competitive interview process might constitute a reasonable adjustment.

The Tribunal, and subsequently the EAT, rejected Ms Wade’s claim. The EAT found that although the House of Lords had previously held that the duty to make reasonable adjustments might require an employer to appoint an employee even if that employee is not the best candidate, nevertheless the question of whether an adjustment is reasonable depends on the circumstances of the particular case. Where the employer genuinely and reasonably considers that the employee does not meet the essential criteria for the job it could not be described as “reasonable” for the employer to have to appoint that person.

Implications: Although the reasonable adjustments duty can often require employers to make changes to selection procedures, when it comes to the actual appointment, employers may be able to insist that at least the essential competencies for the new role are met.