Labour & European Law Review Weekly Issue 331 07 August 2013
Under the Disability Discrimination Act (now the Equality Act), employers have to make a reasonable adjustment if a provision, criterion or practice (PCP) puts the disabled person at a substantial disadvantage compared to someone who is not disabled. In Wade v Sheffield Hallam University, the Employment Appeal Tribunal (EAT) said that a reasonable adjustment could involve disapplying a competitive interview process but not in every case.
Ms Wade, who had been employed at the university since 1980, suffered from an allergic condition. She had been off sick from work since 2004 and was placed on gardening leave in December 2005 until her dismissal in January 2012. Following a reorganisation in 2004, her post was made redundant.
In July 2006 she was interviewed for a vacancy but failed to meet two essential criteria. A vacancy for the same job arose in 2008 and she was asked to attend an interview on 4 April. As she had an allergic reaction, the interview was aborted and rescheduled in more “favourable conditions” for 25 April. The panel rejected her application again because she lacked certain essential skills and was concerned that she seemed to view the job as an extension of the role she had filled since 1986.
Ms Wade claimed that, contrary to the Disability Discrimination Act, the university had applied a PCP to her when it made her undergo a competitive interview process. She also claimed that it failed to make reasonable adjustments when it did not exempt her from the interview process and did not accommodate her failure to meet the essential criteria.
The tribunal agreed that the university had applied a relevant PCP which was to her “substantial disadvantage”, which meant it was under a duty to make a reasonable adjustment. However, although their Lordships had held in Archibald v Fife that disapplying a competitive interview process could be a reasonable adjustment, the tribunal decided that was not always the case.
Instead, the question depended on the particular circumstances of the case including the extent to which the proposed step was practicable. As the reasonable adjustment put forward by Ms Wade was “tantamount to requiring the employer to automatically appoint her when it does not believe that she is appointable”, it could not be said to be reasonable.
The EAT said that the starting point was the decision in Project Management Institute v Latif which made clear that claimants not only have to establish that the duty to make reasonable adjustments had arisen, but also that it had been breached.
In this case, the university had been through the interview process twice with Ms Wade, the first time in 2006 when she failed to meet two essential requirements and again in 2008 when it adjusted the physical environment by changing the venue. Again, on this occasion she failed to meet the criteria and also failed to understand that the job had evolved and changed.
Ms Wade's sole argument - that she should not have been put through an interview process - was not an adjustment the tribunal held to be reasonable, as it meant giving her the job although she did not meet the essential criteria required to do it.
The EAT therefore concluded that although a reasonable adjustment could involve lifting the requirement to go through a competitive interview process, that did not apply in every case particularly if the person failed to meet the essential requirements of the job completely.