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A tribunal has held that existing data from the long service of a disabled employee who was at risk of redundancy should have been used as the basis for assessment for a new job role, rather than a competitive interview process.
In Waddingham v NHS Business Services Authority, Mr Waddingham had been employed by the NHS since 1984 in various roles. In 2012, he was informed that his job role, working with the local Primary Care Trust (PCT), was at risk of redundancy due to a reorganisation of the NHS which would involve the abolition of PCTs. They were to be replaced by Commissioning Support Units (CSUs) and employees from PCTs were to be 'slotted in' to roles and CSUs where there was at least a 51% match between the old and new job roles.
Around the same time, in 2012, Mr Waddingham was diagnosed with throat cancer. In January 2013 whilst he was undergoing radiotherapy treatment, he submitted an enquiry about a Client Relationship Manager (CRM) position within a CSU to his line manager. He also notified the Managing Director of the CSU of his diagnosis. He was informed by the CSU's HR manager that they would accept a shortened version of the application form for the position.
A short while after this, Mr Waddingham obtained a fit note signing him off work for eight weeks due to his cancer treatment.
Mr Waddingham was invited to interview and advised that the process could be arranged around his treatment. Mr Waddingham requested that the interview be held sooner rather than later. He also warned that his voice was affected as a result of the treatment and that he was taking medication to control the pain.
At interview, Mr Waddingham failed to meet the requisite level of 75%, scoring only 54%, and was not appointed the role.
He was dismissed on 31 March 2013, and brought claims for failure to make reasonable adjustments and discrimination arising from his disability.
The Employment Tribunal (ET) upheld both of Mr Waddingham's claims. It found that the requirement to attend a competitive job interview in order to be considered for the CRM role, and the requirement to achieve a score of at least 75% pleased him at a substantial disadvantage when compared to non-disabled applicants.
In terms of reasonable adjustments, the ET found that it was immaterial that Mr Waddingham had offered to go ahead with the interview. The employer still had an obligation to consider whether any reasonable adjustments were necessary. Even without specialist medical knowledge of Mr Waddingham's condition, the employer could reasonably have been expected to consider it likely that Mr Waddingham would be disadvantaged at interview.
The ET held that rather than lower the pass mark or delay the application process, Mr Waddingham should have been assessed on the basis of his existing record over his long services within the NHS.
The ET also held that it was discrimination arising from Mr Waddingham's disability not to appoint him to the CRM role. He was not appointed because of his performance at interview, which was adversely affected by his condition. The NHS was not able to objectively justify this unfavourable treatment. The requirement to attend the interview and meet the requisite level was not proportionate, and the assessment could have been carried out by more proportionate means.
This case highlights the difficulty in dealing with cases such as this. Employers cannot rely on assurances given by employees putting a 'positive spin' on their condition. They must form their own view as to the effects of the relevant medical condition and/or treatment on the employee's ability to perform at interview or in their role generally.
However, it is important to note that each case will be decided on its own facts. Had existing material about Mr Waddingham's performance from his long service not been available, it is possible that this case would have been decided differently.