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More reasonable adjustments…
In Waddingham v NHS Business Services Authority the Employment Tribunal has upheld a claim for failure to make reasonable adjustments which was brought by a disabled NHS employee who did not achieve the necessary score in a competitive interview process for an internal post.
The employee was at risk of redundancy and was offered the opportunity to apply for an alternative position. He wanted to proceed with the interview even though he was signed off sick whilst receiving cancer treatment. The Tribunal found that, while it was necessary to have some form of assessment, this should have been carried out on the basis of existing information about his performance, including appraisals from previous posts. However it did not consider it necessary to lower the pass mark to accommodate the employee’s impaired performance at interview as a result of his disability.
It also found that the failure to appoint the employee amounted to discrimination arising from his disability. The reason he was unsuccessful was because of his poor performance at interview which was adversely affected by his condition. The Tribunal rejected an argument of justification, on the basis that it doubted whether there could be a legitimate aim of selecting the best candidate for the job in the context where a disabled candidate can lawfully be given more favourable treatment than a non-disabled candidate. A more appropriate aim might be to appoint the person who could perform to the required standard.
This is a first instance decision only but quite interesting nonetheless.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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