In the case of Waddingham v NHS Business Services Authority , an Employment Tribunal has held that an NHS Trust failed to make reasonable adjustments for its employee who was undergoing treatment for throat cancer. The Trust’s requirement that the employee attend a competitive interview during a period of redeployment was discriminatory.
Mr Waddingham started working for the NHS in 1984. In 2012, due to a reorganisation, he was placed “at risk” of redundancy. Redundant staff were required to ’slot in’ to new roles where the duties required matched the old role by at least 51%. Once this criteria had been satisfied and employees selected for a matching role, the NHS Trust arranged an interview with that employee. A score of 75% was required for appointment to the role.
In early 2013, Mr Waddingham commenced radiotherapy treatment for throat cancer following his diagnosis in late 2012. During his treatment, he applied for a vacant role for which he believed he had the relevant experience. He attended the interview. The NHS Trust had exercised flexibility regarding the time and date of the interview and allowed Mr Waddingham sufficient rest breaks. He scored 54% and was therefore not offered the role. The NHS Trust terminated his employment in March 2013.
Mr Waddingham applied for a further role in the NHS in February 2014; he was successful. He bought a claim in the Employment Tribunal for unfavourable treatment arising in consequence of his disability, section 15 Equality Act 2010 (EqAct) and a failure to make reasonable adjustments, s.21 EqAct. Both of his claims succeeded.
The Tribunal accepted that his treatment and the ’cocktail of drugs’ leading to fatigue and a lack of concentration are likely to have an adverse effect on his ability to carry out day to day activities. The Tribunal noted that he had received radiotherapy treatment on the morning of his interview and was unable to properly prepare. The Tribunal held that he had been treated unfavourably because of his condition which arose from his disability. The NHS sought to justify its decision not to appoint Mr Waddingham as a proportionate means of achieving the legitimate aim of having the ideal candidate. However, this was not accepted by the Tribunal as requiring him to attend a competitive interview was not a proportionate means of achieving a legitimate aim.
Mr Waddingham’s claim for failure to make reasonable adjustments succeeded on the basis that Mr Waddingham’s suitability for the role could have been assessed by alternative means such as by reviewing past appraisals. He had long service and there is likely to have been sufficient material on which to assess his suitability. However, it was noted that despite this the NHS Trust was not required to lower its pass mark to accommodate Mr Waddingham’s disadvantage. It was also not reasonable for the NHS Trust to have waited until Mr Waddingham had felt better nor for his appointment to be made without any form of assessment.
Mr Waddingham was awarded £115,056.42 in compensation, comprising £73,270.50 for loss of earnings, £27,666 for pension loss, £5,625 for injury to feelings and £8,494.92 in interest.
If the method an employer chooses to assess an employee’s suitability for a role is likely to place a substantial disadvantage on an employee because of or related to their disability, the safe course is to consider alternatives. It is clear that this is likely to be far easier when an employee has long service but may be tricky where an employee has short service.
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