Rachael Lloyd
Posted on 7 Dec 2015

Employer failed to make reasonable adjustments when requiring disabled employee to attend competitive interview

Employer failed to make reasonable adjustments when requiring disabled employee to attend competitive interview

Under s 20 of the Equality Act 2010, employers must make reasonable adjustments to help disabled job applicants, employees and former employees in certain circumstances. The duty arises where a disabled person is placed at a substantial disadvantage by an employer's provision, criterion or practice.

The facts – Mr W had worked in the NHS since 1984 but, following a reorganisation, his role became at risk of redundancy. Shortly after this, Mr W was diagnosed with throat cancer and began radiotherapy. He was issued with a fit note indicating that he was not fit for work for 8 weeks due to his treatment. While off sick, he enquired about applying for a new role (the nearest equivalent position in the new system to his old role). Due to his illness, Mr W was allowed to submit a shortened application, but he still had to attend a competitive interview. Mr W was unsuccessful at interview and was dismissed.

The decision – The tribunal found that the NHS failed to make reasonable adjustments. While it was necessary to have some form of assessment, this should have been carried out on the basis of existing performance data, e.g. appraisals from previous posts. However, it was not necessary to lower the interview pass mark to accommodate his impaired performance.

The failure to appoint Mr W also amounted to disability discrimination. He was unsuccessful because of his poor performance at interview, which was adversely affected by his condition. Rejecting a justification argument, the tribunal doubted whether there could be a legitimate aim of selecting the best candidate for the job, in a context where a disabled candidate can lawfully be given more favourable treatment than a non-disabled candidate. A more appropriate aim may be to appoint a person who could perform to the required standard.

TUPE and short term contracts: are events after a service provision change relevant in determining whether it was the client’s intention that the contract awarded be short term, and caught by the short term task exception? - Yes, held the EAT in ICTS UK Limited v Mahdi and others 

The law – TUPE applies where there is a 'service provision change'. However, there is an exception if, following that change, the client intends that the activities will be carried out in connection with a single specific event or a 'task of short-term duration'. In other words, TUPE won’t apply if the new service provision contract is an interim measure.

The facts - Middlesex University sold one of their campuses, and the current security providers (ICTS) remained in place. The owner put the security service out to tender, and Mr Mahdi lost his job when the contract was taken over by a new contractor, First Call. First Call said that TUPE did not apply and relied on the above exception. They argued that the new contract was to secure what was intended to become a building site, pending completion of the major renovation of the site. As such, the construction project was a 'task of short-term duration'. The employment tribunal accepted First Call’s argument.

The decision - The EAT held that in assessing the client's intention, the employment judge had erred in ignoring events occurring after the transfer date. Although the exception is based on the client's intention at the time of the alleged transfer, subsequent events may shed light on what the relevant intention was at that time. For example, the fact that no planning permission had been granted for the site by the time of the hearing should not have been disregarded altogether. 

No increase to SMP and other statutory payments for 2016-2017

The DWP has announced that the current weekly rate for Statutory Maternity, Paternity, Adoption, Shared Parental Pay and Maternity Allowance (£139.58), and the current weekly rate for Statutory Sick Pay (£88.45) will remain the same next year.

Because of a 0.1% fall in CPI in the year to September 2015, there will be no increase to those payments (or the qualifying earnings thresholds) for 2016-17.  

Guidance on ethical standards in the provision of public sector services 

The Committee on Standards in Public Life has published an online guide to promote high ethical standards for all providers of public services, including those outsourced to the private sector. The guide calls for all those providing public services to establish an ethical culture, and recommends implementing a code of conduct (which should be publicly accessible), together with training and performance reviews that take account of the organisation's ethical values. It also recommends having appropriate whistleblowing and anti-bribery policies, gifts and hospitality registers, and procedures for dealing with conflicts of interest.

View guidance