Mon 04 Jan 2016

Is a requirement to undergo a competitive interview disability discrimination?

Mr Waddington, who was going through treatment for cancer at a time when his job was identified at risk of redundancy, had been required by his employer to attend a competitive interview for an internal post.

Although he was signed of sick at the time, Mr Waddington indicated that he wanted to proceed with the interview.  However, he did indicate to his employer that his voice was affected by his cancer treatment or that he was taking various prescribed drugs to control pain.  Mr Waddington attended the interview but failed to meet the required competency level of 75% and was not appointed. 

The Tribunal found that Mr Waddingham was at a substantial disadvantage compared to non-disabled applicants in terms of both the requirement to attend the competitive interview and the requirement to achieve a score of 75%.  Evidence was heard that the treatment and drugs caused considerable fatigue and affected Mr Waddingham's concentration.  The Tribunal were of the view that the interview panel must have realised that Mr Waddingham's performance would be affected and the fact that he put a positive spin on his condition and had offered to proceed was immaterial.

The Tribunal took the view that the employer should have assessed Mr Waddingham for the role on the basis of existing material such as appraisals.  They found that not doing so amounted to a failure to make reasonable adjustments.  The Tribunal did not think it necessary however for the employer to lower the competency level, dispense with an assessment altogether or delay the process until he recovered. 

The Tribunal also found that the failure to appoint Mr Waddingham amounted to discrimination arising from disability.  He was not appointed because of his poor performance at interview, and his performance was adversely affected by his condition.  The employer's argument that any discrimination was justified by the legitimate aim of appointing the best candidate for the post based on an assessment of skills and making a timely appointment was rejected.  In particular, the Tribunal expressed doubt as to whether there could be a legitimate aim of selecting the best candidate for the job in a context where a disabled candidate can lawfully be given more favourable treatment than a non-disabled candidate.  They also found that requiring Mr Waddingham to attend interview and obtain the required standard was not a proportionate means of achieving the stated aim - the assessment could have been done by more proportionate means.

This case is a clear example of the need for employers to be pro-active when considering adjustments.  The fact an employee may put a positive spin on their condition does not absolve an employer from considering what adjustments might be necessary.  It is also of note that Mr Waddingham was a long serving NHS employee and there was a significant amount of employment history that could have been called upon when carrying out the assessment for the role.  If he had a shorter length of service the Tribunal's findings regarding what adjustments were necessary or reasonable may have differed.  

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