In Waddingham v NHS Business Services Authority, Waddingham’s (W) job was at risk because of redundancy. Competitive interviews were held to determine which redundant staff would be slotted in to newly created positions. W was diagnosed with throat cancer and started receiving radiotherapy treatment. While receiving treatment, W applied for an alternative role for which he was experienced. The employer agreed to make arrangements for the interview that “fitted well’ with W’s health situation. W agreed the date and time indicating he had got the best use of his mouth and voice for the time being. W was told he could take a break at any time or stop the interview and rearrange it if he wanted. W presented himself well, but scored 54% and so was not appointed because he had not reached the required score of 75%. W’s employment was terminated.

The employment tribunal (ET) found it more likely than not that W’s performance at the interview was affected by the treatment he was undergoing. This finding was supported by a letter from W’s consultant, who had written: “I would not expect a patient undergoing such treatment to be fit to undergo a job interview and I was shocked to hear that David had gone through this process while being treated.” W was on a heavy cocktail of drugs, which effected his concentration. He had not eaten prior to the interview, due to having eating difficulties, and had not been able to prepare in the way that he would have otherwise done.

The ET upheld W’s claim that the employer had failed to comply with its duty to make reasonable adjustments under S.20 of the Equality Act 2010. The ET concluded that it would have been a reasonable adjustment to assess W for the role without a competitive interview on the basis of other material available from his long service including looking at evidence of the jobs he had done and his performance in those jobs, evidenced by appraisals.

The ET also upheld W’s claim of discrimination arising from disability under S.15 of the Equality Act 2015. His performance at the interview was adversely affected as a consequence of the treatment he was receiving for his disability, i.e. cancer. It was accepted that the employer had the legitimate aim of selecting the best person for the job, but requiring W to undertake a competitive interview in the circumstances and attain the required score of 75% was not a proportionate way of achieving that aim.

The ET awarded W just over £115,000 in compensation and the case highlights, in particular, just how many claims are now being made for discrimination arising from disability and how this can be linked to making reasonable adjustments. It emphasises the need for employers to observe the contents of the EHRC Employment Code, Chapter 5 – Discrimination arising from disability and Chapter 6 – Duty to make reasonable adjustments. The case also reminds employers of the need to be clear about the true medical condition on an employee in such circumstances and try to adopt an alternative method for assessment if a disabled employee is placed at a substantial disadvantage because of his or her disability and/or is being adversely affected by something arising as a consequence of that disability.

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