Disability discrimination and the duty to make reasonable adjustments (EAT 2013)

Mrs A D Wade v Sheffield Hallam University [UKEAT 0194/12/1504] | 2013

The Equality Act 2010, and the Disability Discrimination Act 1995 before it, requires an employer to make a reasonable adjustment where an employee is at a substantial disadvantage due to a provision, criterion or practice of the employer. It is well established that disapplying a competitive interview process may be a reasonable adjustment.

Mrs Wade was employed by Sheffield Hallam University (‘the University’) as an Information Specialist. Mrs Wade suffered from an allergic condition which meant she was classed as disabled. As a consequence, the University made a number of adjustments including allowing Mrs Wade to work at home.

In 2006 Mrs Wade was interviewed for a position but failed to meet two essential criteria; it was deemed she lacked the ability to lead teams and to work within the newly restructured faculty of Organisation and Management.

In 2008 the University commenced a restructuring process. As part of the process Mrs Wade was at risk of redundancy. Surprisingly and for reasons not explained in the judgment Mrs Wade had not been at work since 2004 and she was put on garden leave in 2005.

In 2008 there was a vacancy for the same job that Mrs Wade had been unsuccessful in obtaining in 2006. Mrs Wade was yet again unsuccessful in obtaining the position. Mrs Wade claimed that it was a reasonable adjustment for the University to ‘map’ or ‘slot’ her into the new role without the need for a competitive interview.

When the University did not place Mrs Wade into the role she brought a claim in the employment tribunal claiming the University had failed to make a reasonable adjustment. The University argued that Mrs Wade did not meet the essential requirements of the new job and was therefore not appointed. Mrs Wade argued that the new job was essentially her ‘old’ job. The tribunal did not agree.

The employment tribunal found that the University was under a duty to make an adjustment but the adjustment requested was not reasonable. Mrs Wade appealed to the EAT.

The EAT agreed with the employment tribunal that the University had been under a duty to make a reasonable adjustment. It also agreed that the University did not breach its duty to make a reasonable adjustment by requiring Mrs Wade to undertake a competitive interview.

The EAT accepted that it may be a reasonable adjustment for an employer to disapply a competitive interview process. However, that would not always be the case. The question must depend upon the particular circumstances of the case. The EAT agreed that it was not a reasonable adjustment in this case. The adjustment requested was tantamount to requiring the University to automatically appoint Mrs Wade even though she failed to meet the essential requirements of the new position.

It has long been the case that it may be a reasonable adjustment to appoint a disabled employee without the requirement for a competitive interview process. That may be the case even where the appointment amounts to a promotion. However, this case has made it clear that it will not always the case.

Employers should consider disapplying a competitive interview processes as a reasonable adjustment. However, an employer will not be required to appoint an employee if that employee fails to meet the essential requirements of the position.