Reasonable adjustments

29 Aug 2013

The Employment Appeal Tribunal has held that an employer did not fail in its duty to make reasonable adjustments by requiring a disabled employee to participate in a competitive interview process for an internal vacancy when her own role was made redundant.

In the case of Wade v Sheffield Hallam University, Mrs Wade was employed by Sheffield Hallam University as an "information specialist".  Mrs Wade was diagnosed with an allergic condition which constituted a disability under the Disability Discrimination Act 1995 (now the Equality Act 2010).  The University made various adjustments in order to allow Mrs Wade to continue to perform her duties, including an arrangement for her to work from home.

In 2004, the University carried out a wide-ranging restructure and a number of changes to roles were proposed, which included Mrs Wade's role.

Mrs Wade was absent from work for some time in 2004 and was then placed on garden leave in December 2005.

A vacancy arose in July 2006 and Mrs Wade was interviewed for this position.  Unfortunately, at that time, her skills did not fulfil two essential criteria for the new role.  In 2008, Mrs Wade was informed that the role she had been carrying out before being placed on garden leave was to be made redundant.  In light of the proposed redundancy of her role and as the same vacancy from 2006 had arisen again, Mrs Wade was told that she would be given priority consideration for the alternate role.  Mrs Wade was required to participate in a competitive interview process for the role and was told that if she met the required criteria, and if adjustments could reasonably be made, she would be appointed to the post.

At the interview, Mrs Wade's allergic condition flared up and the interview was abandoned and rescheduled to take place at a more favourable venue for Mrs Wade.  Following the re-scheduled interview, the University considered that Mrs Wade had not demonstrated that she met the relevant criteria for the role and her application was therefore unsuccessful.

Mrs Wade complained that, in light of her disability and lengthy absence from work, she should not have been required to participate in the competitive interview process.

Mrs Wade brought various claims for disability discrimination in the Employment Tribunal, including an allegation that the University had failed to make a reasonable adjustment in respect of the interview procedure by not waiving the requirement for her to take part in a competitive process. 

The Disability Discrimination Act 1995 required an employer to make reasonable adjustments where a provision, criterion or practice (PCP) applied by the employer would put a disabled person at substantial disadvantage in comparison with persons who were not disabled.  This obligation has, of course, been transposed into the Equality Act 2010.

The Employment Tribunal found that the competitive interview process did constitute a PCP which put Mrs Wade at a disadvantage but held that it would not have been reasonable for the University to have waived the requirement for her to participate in such a process as to do so would mean appointing someone to a role for which they were not suitable.   

When Mrs Wade appealed, the Employment Appeal Tribunal (EAT) upheld the Tribunal's decision and stated that although the duty to make reasonable adjustments was engaged, the University had not breached its duty in this case.  It was reasonable for the University to insist that the essential requirements of the role were met and, in the EAT's opinion, it could not be a reasonable adjustment to appoint someone to a role where that person failed to meet the essential requirements.

Our view:

A claimant bringing a disability discrimination claim must not only establish that a breach of the duty to make reasonable adjustments has occurred, but there must also be evidence of an apparently reasonable adjustment which could be made in the circumstances.

The question of what is reasonable in relation to adjustments for disabled employees will depend on all the circumstances, including the practicality of taking a particular step and/or making a specific adjustment.  There can sometimes be a fine line between balancing the needs of the business against the needs of the individual.