Springhouse Solicitors

Disability : tough case on redundancy adjustments

We report on a tough case about reasonable adjustments for a disabled employee in a redundancy situation. Here, the Tribunal doubted whether selecting the best candidate for the alternative role was a legitimate aim where there is a disabled candidate.

Background

Mr Waddingham, the Claimant in this case, had worked in the NHS since 1984. In 2012 he was put at risk of redundancy.

Unfortunately, at this time he had been diagnosed as having throat cancer. The treatment meant that he suffered considerable fatigue and his concentration was also affected. As Mr Waddingham was on sick leave, the NHS Trust had tried to dissuade him from attending the competitive selection interview for the alternative post. He had, however, insisted on attending, as he was in some considerable fear of losing his job.

The Trust therefore assessed Mr Waddingham against the new job during the competitive interview, and he was not successful.

Mr Waddingham brought his claim for disability discrimination on the basis, first, that the NHS should have insisted that he did not attend the interview, but, in light of his considerable length of service, assessed him against the alternative role on the basis of his past record and the documents they had. Second, he claimed that, as reasonable adjustments necessarily put disabled people at an advantage over non-disabled employees, a similar approach should have been taken in this redundancy exercise. This meant that it would be incumbent on the NHS to assess not whether he was the best candidate for the job, but whether he met the selection criteria.

The Employment Tribunal agreed with Mr Waddingham and found against the NHS Trust on both points.

Implications

This case is a stark warning to employers of how carefully they need to approach situations where proposed courses of action put disabled employees at a disadvantage.

They will need to consider, in redundancy situations such as this, whether they should positively discriminate in favour of disabled employees, just as they are under an obligation to positively discriminate in favour of those absent on maternity leave.