Where a disabled person is substantially disadvantaged, in comparison with people who are not disabled, by a provision, criterion or practice (PCP) applied by an employer (for example a decision or policy), the employer is under a duty to make reasonable adjustments in order to assist the disabled person. Failure to make a reasonable adjustment in such circumstances amounts to disability discrimination and a Claimant can be awarded an uncapped amount of compensation.
In Wade v Sheffield Hallam University UKEAT/0194/12, the Claimant suffered from an allergic condition which amounted to a disability. Following a restructure, the Claimant applied for an alternative position on two occasions – once in 2006 and again in 2008. The Claimant was interviewed for the position in accordance with a competitive process. She was unsuccessful both times on the basis that she failed to meet the essential requirements of the role.
The Claimant complained about having to go through a competitive interview process and felt that it would have been a reasonable adjustment to abandon this requirement. The tribunal therefore considered whether the removal of the competitive interview process would have amounted to an adjustment which was reasonable in the circumstances.
The tribunal found that the adjustment (ie: the removal of the competitive process) was not reasonable because it was “tantamount to requiring the employer to automatically appoint her” when it did not believe she was appointable. What would be a reasonable adjustment had to be considered in light of whether such an adjustment would be practicable.
The EAT upheld the tribunal’s decision and agreed with its analysis.
The “competitive interview process”, which included the requirement that the Claimant meet the essential criteria for the job, was a PCP and so in principle the duty to make reasonable adjustments applied.
However, in deciding whether the duty to make reasonable adjustments had been breached the EAT considered that there must first “be evidence of some apparently reasonable adjustment which could be made”. The EAT did not regard the adjustment the Claimant was seeking as reasonable because it would effectively result in her being given a job for which she was not at all suitable.
Whilst this case considered the law under the now repealed Disability Discrimination Act 1995, the principles involved are essentially the same under the Equality Act 2010 and so this case does have current relevance.
It illustrates that there are limits on what adjustments should be made. Effectively, employers are not required to appoint disabled employees in alternative posts where they fail to meet the essential requirements of the role and common sense here has prevailed. However, adjustments to the practicalities of the interviews (eg: time and location) should always be carefully considered.