31/07/2013
The background
Section 20(3) of the Equality Act 2010 places employers under a duty to make reasonable adjustments where a provision, criterion or practice (PCP) puts a disabled employee or candidate at a substantial disadvantage.
The Equality and Human Rights Commission’s Employment Statutory Code of Practice lists factors which may be taken into account when considering what adjustments are reasonable in a given case. It also provides practical examples of reasonable adjustments. The Code states that transferring a disabled employee, who is unable to perform their job, to an existing vacancy may be a reasonable adjustment.
The House of Lords in a 2004 case called Archibald v Fife Council stated that transferring an employee to a new role by waiving the requirement for that employee to undergo a competitive interview was potentially a reasonable adjustment.
The facts
Mrs Wade had been employed by the university since 1980 as a librarian and later information specialist.
She suffered from an allergic condition which constituted a disability for the purposes of the Equality Act.
For a reason not referred to in the judgment, Mrs Wade was absent from work from some time in 2004, and was put on garden leave in 2005. She remained on garden leave until her dismissal in January 2012. It is understood that in 2004 there was a university-wide restructuring process that proposed changes to Mrs Wade's role.
Mrs Wade applied for an internal vacancy in 2006 but was unsuccessful because she failed to meet two essential criteria at interview.
The same job became available again in 2008. At the same time Mrs Wade was informed that her current role was redundant and she was given the opportunity to apply for the alternative role. Mrs Wade again was interviewed and rejected. The university again concluded that she did not meet the essential criteria of the role.
In the employment tribunal, Mrs Wade claimed that the competitive interview process was a PCP which put her at a substantial disadvantage because she had been out of the workplace for a significant length of time.
The tribunal accepted that the duty to make reasonable adjustments was engaged: the competitive interview process was a PCP and Mrs Wade was at a substantial disadvantage. However, it found that waiving the competitive interview requirement was not a reasonable adjustment. Mrs Wade appealed.
The decision
In Wade v Sheffield Hallam University, the Employment Appeal Tribunal (EAT) upheld the decision of the tribunal, concluding that the university should not be expected to transfer Mrs Wade automatically into the new role where it had genuine concerns regarding her suitability for the position.
Mrs Wade had sought to rely on the judgment in Archibald (see above). The EAT held resoundingly that Archibald is not authority for the proposition that waiving the requirement for a competitive interview is a reasonable adjustment in every case; the question of reasonableness will depend on all the circumstances of the particular facts.
The EAT upheld the tribunal's finding that whether or not disapplying a competitive interview process is a reasonable adjustment will depend on the practicability of such a step. It went on to say that an employer is not required to automatically transfer an employee to a position if s/he does not meet the essential requirements for the role; it cannot be ‘reasonable’ to appoint someone to a position for which they are unsuitable. The EAT was quite clear that Mrs Wade did not meet the requirements for the position and that the university had a genuine belief this was the case.
In coming to its decision the EAT confirmed that a person who brings a claim must not only show that there is a PCP which places them at a substantial disadvantage; they must also propose a reasonable adjustment that their employer could make.
What does this mean for me?
This decision is an important refinement of the judgment in Archibald. To the extent that it dispels the myth that disabled employees cannot, in any circumstances, be subject to competitive interview processes it is very good news for employers. We now know that it is not a ‘reasonable’ adjustment to appoint a disabled employee into a role for which they are entirely unsuited. Further, the EAT's readiness to accept the university's ‘genuine’ assessment of Mrs Wade's suitability with no need for further analysis is pleasing.
A slight note of caution, however, should be sounded as the EAT's decision in this case turned on fairly specific facts, particularly the fact that Mrs Wade had been interviewed previously for the same position and found wanting.
The question of what reasonable adjustments should be made for a disabled employee remains a difficult question, particularly where their existing role is at risk or their ability to perform this role is hindered by their disability. If you have concerns as to whether s.20(3) is engaged and what steps you are required to take, please contact me or another member of the team for specific advice.
