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Reasonable redeployment

Is an employer obliged to waive a competitive interview process for a disabled candidate? No, suggests the Employment Appeal Tribunal in a recent…

Is an employer obliged to completely waive a competitive interview process for a disabled candidate? No – suggests the Employment Appeal Tribunal in the recent case of Wade v Sheffield Hallam University provided that the duty to make reasonable adjustments has been fully and properly considered first.

The law

This case was brought under the Disability Discrimination Act 1995, which has now been superseded by the Equality Act 2010. Both contain a similar duty to make ‘reasonable adjustments’ when an employee is disabled.

The duty to make reasonable adjustments arises if there is a provision, criterion or practice (PCP) which puts the disabled person at a substantial disadvantage compared to persons who are not disabled.

A key case considering what adjustments might be reasonable is the 2004 case of Archibald v Fife Council. The House of Lords held that an employer's duty to make reasonable adjustments might require it to appoint a disabled employee to an alternative post, even if that employee is not the best candidate. In particular, it was stated that it might be a reasonable step to transfer an employee to an existing vacancy without competitive interview requirements.

The facts

The Claimant, Mrs Wade, was employed by Sheffield Hallam University from 1980 to January 2012 as a librarian. This role changed over the years into that of an ‘information specialist’. She suffered from an allergic condition which constituted a disability. After she was diagnosed with this condition, various adjustments were made to enable her to perform her role, including an arrangement for her to work from home.

In 2004, a university-wide restructure took place and changes to various roles were proposed, including to Mrs Wade’s role. At that time she was absent from work – and remained absent until her dismissal nearly 8 years later in 2012.

Mrs Wade was interviewed for a vacancy which arose in July 2008. At the same time she was told that her former role was now redundant and that, consequently, she would be given priority consideration for the vacant position. However, she was required to undergo a competitive interview process and was told that, if she met the criteria of the job, and adjustments could reasonably be made, she would be appointed to the post.

She was unsuccessful. The University found that she did not meet two essential criteria, namely the ability to lead teams and also, based on her answers given in interview, the ability to work within the newly structured faculty. It was concluded that she was ‘not appointable’.

Mrs Wade brought various claims for disability discrimination. In particular, she alleged that her employer had failed to make reasonable adjustments by failing to waive the competitive interview requirement in her case.

The decision

The EAT found that the competitive interview process did constitute a provision, criterion or practice, which put Mrs Wade, at a disadvantage compared to non-disabled candidates. However, it held that whilst the duty to make reasonable adjustments was definitely engaged, it had not been breached in this case.

The EAT stated that it would not have been reasonable for the employer to waive the interview requirement. To do so would mean appointing an employee to a role when they were not believed to be suitable.

Looking back at the Judgment in Archibald v Fife the EAT clarified that the previous Judgment did not mean that waiving a competitive interview requirement would be reasonable in every case. ‘Reasonableness’ depended on all the circumstances of the particular case.

Comment

This case suggests that, whilst the duty to make reasonable adjustments must always be borne in mind, an employer is entitled to insist that an applicant meets the core competencies of a role to be appointed.

To some extent, this case softens the impact of earlier decisions on the issue to reflect commercial reality. The EAT acknowledged that it would ‘make a nonsense’ of the appointment process if an employer was obliged to appoint an individual who they had little faith in.

This Judgment should provide some reassurance to employers carrying out restructuring or redundancy exercises – or indeed assessing whether a disabled employee is fit to return to the workplace in long term sickness absence cases where the employee’s former role is no longer suitable.

Whilst every effort should be made to adjust the recruitment process and any elements of the role itself that might be problematic to the disabled employee, there is no obligation to waive a competitive process entirely. However, it is crucial to be clear about the core competencies required and to be able to explain why these are genuinely essential to the role. Also, be sure to keep clear objective records of the disabled candidate’s performance against these criteria in interviews or assessments. To illustrate effectively that the duty to make reasonable adjustments has been discharged, robust supporting evidence will be needed.

Louise Singh is a professional support lawyer based in our Liverpool Office. If you have any queries regarding the issues raised in this article please contact louise.singh@weightmans.com