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NHS Falls Foul Of Employment Tribunal Over Cancer Sufferer

A recent case in the Employment Tribunal (ET) upheld an NHS employee’s claims for failure to make reasonable adjustments and disability discrimination after he failed in a competitive interview process whilst undergoing treatment for throat cancer.

In December 2012, Mr Waddingham, the employee received a notice that his job was at risk of redundancy following a reorganisation. In January he started radiotherapy and around this time indicated that he would like to apply for the position within the new structure that was most similar to his existing role. The employer allowed him to submit a shortened application form after which, he was signed off for eight weeks to undergo treatment. He was then invited to a competitive interview, the employer proposed to arrange this around his treatment, but he suggested that it would be preferable for it to take place sooner rather than later. He also informed his employer that his voice was affected and he was on drugs to control the pain.  His employer informed him that he could take a break at any time during the interview or rearrange it if necessary. Mr Waddingham failed the interview, scoring 54% against a required competency of 75%. He was subsequently dismissed and brought claims against his employer.

The ET found in the employee’s favour in both claims.

As to the failure to make reasonable adjustments, the ET found that the requirements  to attend a competitive interview and to achieve a score of at least 75% put Mr Waddingham at a substantial disadvantage as against non-disabled applicants. The drugs caused fatigue and affected concentration and the interviewers could be expected to have considered it likely that his performance would be affected. This was the case even where the employee had offered to proceed; his willingness did not negate the employer’s obligation to look at reasonable adjustments. The ET found that whilst lowering the pass mark or dispensing with the assessment was not necessary, the employer should have assessed him by looking at previous performance in other roles undertaken during his long service, by looking at previous appraisals and so on.

Leading on from this, the failure to appoint him amounted to disability discrimination. He was not appointed because of his performance at the interview and this was due to his condition. The employer argued that any discrimination was justified by the legitimate aim of selecting the best candidate for the post, but the ET found that a more appropriate aim may have been to appoint a person who could perform to the required standard. It found that the assessment could have been carried out through more proportionate means than requiring an interview.

This case highlights to employers that they have a duty to consider what adjustments might be reasonable in a given case. This is regardless of whether the employee has indicated that he is happy to proceed. The employee’s wishes should not be taken at face value, particularly in cases where there is a risk of losing employment.
 

This case highlights to employers that they have a duty to consider what adjustments might be reasonable in a given case. Call me for advice if you find yourself in a similar situation.

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