The EAT has ruled that an employer was not required to waive a competitive interview process for a disabled employee in a redundancy situation.
Under the Equality Act 2010 (the "Act") employers have a duty to make reasonable adjustments for both job applicants and existing employees who are disabled within the meaning of the Act. The duty arises where a provision, criterion or practice puts a disabled person at a substantial disadvantage compared to a non-disabled person.
Whilst employers are required to make reasonable adjustments to an interview process for external candidates, it is accepted that they are ultimately able to choose the best candidate for the job. However, the position is more complex for employers considering alternative employment for employees who are, due to their disability, unable to continue in their existing role.
In the case of Archibald v Fife Council in 2004, the House of Lords held that it was a reasonable adjustment to allow a road sweeper who had injured her back and was no longer able to undertake her role to be appointed to another role that she could undertake, even though she was not the best candidate.
The Employment Appeals Tribunal (EAT) went even further in Chief Constable of South Yorkshire Police v Jelic. In this case, a police constable suffering from chronic anxiety syndrome was moved from his front line role to a role which did not require him to deal with the public directly. However when the requirements of the role changed, requiring him to have face to face contact, he was medically retired. The EAT held that in this case the employer should have considered swapping his role with another police constable whose role did not require face to face contact with the public. Whilst arguably limited to cases where the employer has the power to move employees around its organisation, this case demonstrated just how far employers could be required to go to accommodate disabled employees by considering alternative roles within their organisation.
In Wade v Sheffield Hallam University, Mrs Wade, a disabled employee of the Sheffield Hallam University, whose role was redundant, applied for another role within the university. She was interviewed but failed in two core competencies and was therefore considered 'not appointable' to the role. Following this decision Mrs Wade brought various disability discrimination claims against the university, including that the university should have made the 'reasonable adjustment' of waiving the requirement for her to undertake a competitive interview process.
Whilst the competitive interview process was held to be a 'provision, criterion or practice' which put Mrs Wade at a disadvantage due to her disability, the employment tribunal held that disapplying the requirement for a competitive interview was not appropriate as it would require the university to employ someone in the role who was not suitable.
Mrs Wade appealed but the EAT upheld the tribunal's decision, stating that remarks made in the judgment of Archibald, that disapplying a competitive interview process might be a reasonable adjustment, would not be reasonable in every case.
The case of Wade is undoubtedly a common sense decision that will be welcomed by employers. However, the earlier decisions demonstrate the difficulty faced by employers in applying clear rules to real life situations. Employers will still need to carefully balance their duty to assist disabled employees in overcoming their disadvantage in the workplace with the practical needs of their business and decide what sort of adjustment is appropriate in all the circumstances.