Appointing someone unsuited to the role was not a reasonable adjustment (EAT)
Appointing someone unsuited to the role was not a reasonable adjustment (EAT)
Section 4A(1) of the Disability Discrimination Act 1995 (DDA 1995) placed an employer under a duty to make reasonable adjustments where a provision, criterion or practice (PCP) applied by the employer put a disabled person at a substantial disadvantage in comparison with persons who were not disabled. On 1 October 2010, the DDA 1995 was replaced by the Equality Act 2010 (EqA 2010) which contains a similar duty to make reasonable adjustments.
Under the DDA 1995, the duty to make reasonable adjustments arose if there was a provision, criterion or practice (PCP) which put the disabled person at a substantial disadvantage compared to persons who were not disabled. The EHRC Employment Statutory Code of Practice (Code) sets out possible examples of reasonable adjustments, including transferring an employee who is unable to perform their job to an existing vacancy. This reflects Archibald v Fife Council  IRLR 651, in which the House of Lords held that an employer's duty to make reasonable adjustments might require it to appoint a disabled employee to an alternative post, even if that employee is not the best candidate. In particular, it was stated in Archibald that it might be a reasonable step to transfer an employee to an existing vacancy without competitive interview requirements.
Under section 18B of the DDA certain factors had to be taken into account when considering whether it would be reasonable to make an adjustment, including whether it would be practicable to take the particular step. While this provision is not contained in the Equality Act 2010, the EHRC Code does list the section 18B factors as matters which may be taken into account when considering the reasonableness of an adjustment.
In the case reported below, which was brought under the DDA 1995, the requirement to undergo a competitive interview process was held to be a PCP which put the employee at a substantial disadvantage. The issue for the EAT was whether, as a reasonable adjustment, the employer ought to have waived its requirement for a competitive interview process and its insistence that the candidate meet the core competencies of the job.
Mrs Wade was employed by Sheffield Hallam University from 1980 to January 2012 as a librarian, a role which changed over the years and came to be known as "information specialist". She suffered from an allergic condition which constituted a disability under the Disability Discrimination Act 1995. After she was diagnosed with this condition, various adjustments were made to enable her to perform her role, including an arrangement for her to work from home.
In 2004, a university-wide restructure took place and changes to various roles were proposed, including to Mrs Wade's role. For reasons which are not explained in the judgment, Mrs Wade was absent from work from some time in 2004 and was then placed on gardening leave from December 2005 until her dismissal in January 2012.
Mrs Wade was interviewed for a vacancy which arose in July 2006, although her application was unsuccessful. The University found that she did not meet two essential criteria, namely the ability to lead teams and also, based on her answers given in interview, the ability to work within the newly structured faculty. The job for which she had been rejected became vacant again in 2008. At the same time, Mrs Wade was told that the job she had been doing prior to gardening leave no longer existed and that, as someone whose role was redundant, she would be given priority of consideration for the alternative post. She was required to undergo a competitive interview process and was told that, if she met the criteria of the job, and adjustments could reasonably be made, she would be appointed to the post.
When Mrs Wade attended the interview, her allergic condition flared up, with the result that the interview had to be abandoned and rescheduled to a more favourable venue. In the event, Mrs Wade was not successful in her application. The University concluded that she was "not appointable" and explained how, in interview, she did not demonstrate that she met the relevant criteria. Mrs Wade complained about having had to go through the competitive interview process; she felt an adjustment should have been made, given her disability and lengthy absence from work, to waive this requirement.
Mrs Wade brought various claims for disability discrimination in the employment tribunal. Among other things, she alleged that the University had failed to make a reasonable adjustment in respect of the interview process, in particular by not waiving the competitive interview requirement in her case. 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 employer to waive the interview requirement. To do so would mean appointing someone to a role when they did not believe them to be suitable.
Mrs Wade appealed to the EAT. She argued that the tribunal had erred in finding that the duty to make a reasonable adjustment had not been breached.
The EAT upheld the tribunal's decision. While the duty to make reasonable adjustments was engaged, the employer had not breached its duty in this case.
Mrs Wade had sought to rely on dicta in Archibald v Fife Council  IRLR 651, that disapplying a competitive interview process might constitute a reasonable adjustment. The EAT agreed with the employment tribunal that Archibald was not authority for the proposition that such an adjustment would be reasonable in every case; the question of reasonableness would depend on all the circumstances, including the practicability of taking the particular step. The EAT also agreed with the tribunal when it stated that making the adjustment contended for would be tantamount to appointing Mrs Wade automatically, when it did not consider her suitable. Such a course of action could hardly be described as a "reasonable". Furthermore, the University's view that Mrs Wade was not appointable was genuine and one which they were entitled to reach.
The EAT grappled with the question of who bears the burden of proving that the duty to make reasonable adjustments has, or has not been, breached. The EAT cited, with approval, the following guidance from Project Management Institute v Latif  IRLR 579:
"The claimant must not only establish facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made."
The judgment of the employment tribunal could not be faulted. The tribunal had held that it was reasonable for the University to insist on the essential requirements of the job being met. In the EAT's view, it could not be a reasonable adjustment for the employer to appoint someone to a role where the person failed to meet the essential requirements of the job.
The facts of this case are reminiscent of those in Lowe v Cabinet Office, a case in which an applicant with Asperger's syndrome argued that the requirements for entry to the Fast Stream of the civil service, namely excellent communication skills, and other core competencies, should be watered down to accommodate her disability. The employment tribunal concluded in Lowe that the employer was entitled to insist that the core competencies of the job should be met and that it would not be reasonable to expect the employer to dilute them. Similarly, in this case, the tribunal and the EAT acknowledged that it would make a nonsense of the appointment process if the employer had to appoint someone they had no faith in.
Disabled employees who are on long-term sick leave, or who are not in active employment at the time when an alternative vacancy arises, will, by definition, find it hard to "prove themselves" at interview. This case demonstrates how hard it is to reconcile the dictum in Archibald, about not necessarily appointing the best candidate, with commercial reality.