Reasonable Adjustments – How Far Do Employers Have to Go?
We are all familiar with the concept of the duty to make reasonable adjustments for disabled employees. This duty extends to an employer’s recruitment process, where reasonable adjustments to the interview procedure should be made, where needed, for disabled candidates. However, employers still have the ultimate discretion to employ the best candidate for the job.
Perhaps rather frustratingly for employers, the position with regard to redeployment of existing disabled employees has, until now, been less straightforward. Cases over the last decade have stretched the duty to make reasonable adjustments to encompass the redeployment of a disabled employee to an alternative role, even when they are not the best candidate. This was the situation in the case of Archibald v Fife Council (2004), where the House of Lords held it was a reasonable adjustment to redeploy a road sweeper with an injured back to an alternative and less active role, even though she was not the most suitable candidate for that role.
Arguably, the duty on employers was made even more onerous by the Employment Appeals Tribunal in Chief Constable of South Yorkshire Police v Jelic (2010). A police constable was moved away from front line duty into a non-public facing role after he developed a severe anxiety disorder. Sometime later, this role became more outward facing and the constable was retired by the Force on medical grounds. However, the EAT ruled that reasonable adjustments had not been made by the Force, as it should have considered switching the constable’s role with that of a less public facing employee.
The recent case of Wade v Sheffield Hallam University (2013) provides some welcome clarification. Mrs Wade, who was a disabled employee, found that her role was being made redundant. She applied for an alternative role within the university and was subject to a competitive interview process. Unfortunately, she failed to reach the required standard in two core competencies and therefore did not secure the job. Mrs Wade subsequently brought claims of disability discrimination, alleging that the university should have made reasonable adjustments by not requiring her to undertake an interview. However, the Employment Tribunal did not agree and ruled that waiving the requirement for a competitive interview was not reasonable as it would result in the university appointing someone who was not suitable for the role.
Mrs Wade appealed to the EAT, citing the decision in Archibald v Fife Council, but the initial decision of the Employment Tribunal was upheld. The EAT commented that, whilst waiving a competitive interview process might be a reasonable adjustment, it would not be reasonable in every case.
The decision is useful for employers in that it shows the duty to make reasonable adjustments will not always exclude the right to choose the best candidate for the job. However, employers will undoubtedly still need to be careful in negotiating such situations and would be well advised to seek legal guidance on a case by case basis.