Competitive Interview Requirement was Disability Discrimination

An employer discriminated against a disabled employee by requiring him to go through a competitive interview process. 

Speedread

An employer should not have required a redundant employee undergoing cancer treatment to go through a competitive interview process for an alternative role. It should instead have assessed him based on existing material available from his long service, such as appraisals in previous posts. The fact that the employee rejected offers to arrange the interview around his condition and put a positive spin on it did not absolve the employer from it obligation to consider reasonable adjustments. 

Even if the employer’s aim of appointing the best candidate for the post was a legitimate one (which the tribunal had some doubts about), requiring him to go though a competitive interview process was not a proportionate means of achieving that aim. 

Facts

In Waddingham v NHS Business Services Authority, Mr Waddingham had worked in a variety of roles in the NHS since 1984. In early 2012, he was told of a reorganisation affecting him. Employees were slotted into new roles if there was at least a 51% match with a new role but there were no roles sufficiently similar to Mr Waddingham’s. On 4 December 2012, he received notice that he was at risk of redundancy. 

In December 2012, Mr Waddingham was diagnosed with throat cancer. He told HR of his diagnosis. He began radiotherapy treatment in January 2013. Around this time he became aware of the new Client Relationship Manager (CRM) position and sent an email to the Managing Director of the Commissioning Support Unit enquiring about it. He also told her of his diagnosis and that he was to undergo eight weeks of treatment. She said she would accept a shortened application for the CRM position and he applied. Shortly afterwards he was issued with a fit note indicating he was not fit for work for eight weeks due to his treatment. 

Mr Waddingham was invited for interview and told that the interview could be arranged around his health situation. However, he suggested they meet sooner rather than later, but warned his voice was affected by the ongoing treatment and that he was on a cocktail of drugs to control the pain. When he attended the interview, he was told he could take a break at any time, or that he could stop the interview and rearrange it if necessary. He scored only 54% and as he did not meet the required competency level of 75% he was not appointed. 

He claimed breach of the duty to make reasonable adjustment and discrimination arising from disability. The employment tribunal upheld both claims. 

Reasonable adjustments

It found that the requirement to attend a competitive interview and the 75% competency level both put him at a substantial disadvantage. It was likely that his performance was affected by the radiotherapy and pain-relief drugs which caused fatigue and affected concentration. Even without specialist knowledge of his condition, the interviewers ought to have recognised this. The fact that Mr Waddingham had offered to proceed and had put a positive spin on his condition did not absolve the employer from it obligation to consider reasonable adjustments. Whilst it was not necessary to lower the pass mark, dispense with any form of assessment or delay until he was better, the employer should have assessed him for the role on the basis of existing material available from his long service, such as appraisals in previous posts. 

Discrimination arising from disability 

The failure to appoint Mr Waddingham to the CRM post was also discrimination arising from disability. He was not appointed due to poor performance at interview, which was due to his disability. The employment tribunal rejected the employer’s argument that its actions were justified by the need to select the best candidate. It doubted whether there could be a legitimate aim of selecting the best candidate, in view of the fact that a disabled candidate can lawfully be given more favourable treatment than a non-disabled candidate. A more appropriate aim might have been to find a candidate who could perform the role to the required standard. In any event, requiring Mr Waddingham to attend the interview and obtain the required standard was not a proportionate means of achieving the employer’s stated aim. The assessment could have been carried out through more proportionate means.

Implications

Employers considering disabled employees for jobs should always consider whether their processes put a disabled person at a disadvantage and whether any reasonable adjustments can be made. The employer in this case may feel a little hard done by as it did make some adjustments and offered others which the employee did not take up. However, the employee had only recently been diagnosed, was undergoing debilitating treatment and the tribunal considered that the employer ought to have done more and not just agreed to the employee’s wishes. It was particularly relevant that the employee in this case was long serving and his performance could therefore have been assessed based on appraisals in previous roles.