A round up of the latest HR and Employment Law updates and related stories.  

DISCRIMINATION – EMPLOYERS MUST MAKE REASONABLE ADJUSTMENT FOR A DISABLED EMPLOYEE

Section 15 of the Equality Act 2010 means that where an employer knows, or could reasonably be expected to know, that the employee has a disability, the employer can not treat the employee unfavourably because of something “arising in consequence of” his or her disability unless the employer can show that the treatment is a “a proportionate means of achieving a legitimate aim”.

We have been reminded of this in the recent judgment in the case of Waddingham v NHS Business Services Authority ET/1804896/2013 & ET/1805624/2013 where the NHS were carrying out a redeployment exercise whereby redundant staff were to be “slotted in” to new roles following a 2 part process which required:

• at least an initial 51% match in duties between the old role and the new role and
• attendance at a subsequent interview which achieved a score of 75% or more.

Mr Waddingham had been employed by the NHS (in various roles) since 1984 and was unfortunately (as the NHS were aware) diagnosed with throat cancer in 2012. At that time his then current role was under threat of redundancy but his job was a sufficient match in duties (i.e. 51% or above) with a new role to satisfy the first part of the redeployment exercise. This meant Mr Waddingham was eligible for the competitive interview – the second part of the process. Mr Waddingham had started his treatment just before he applied for the new role and, unfortunately, only scored 54% at interview which means that he was not offered the new role. As a result Mr Waddingham took the NHS to an employment tribunal for disability discrimination.

At the hearing the tribunal accepted that:

• the NHS had been accommodating about the time and date of Mr Waddingham’s interview and had advised him that he could stop or take a break at any time during it and
• they understood and accepted the NHS had a legitimate aim to appoint the best candidate

However, in these circumstances the tribunal felt asking Mr Waddingham to:

• attend a competitive interview and
• to meet the desired percentage

was not “ a proportionate means” of achieving that legitimate aim.

Therefore the tribunal held that NHS had behaved unlawfully because they had not made a “reasonable adjustment” for Mr Waddingham in requesting that he attend a competitive interview.

So what did the tribunal suggest was “reasonable adjustment” in this case?
The tribunal held that a “reasonable adjustment” would be an alternative form of assessment (i.e. no competitive interview) based on other available evidence which was available (such as appraisals), particularly because of Mr Waddingham’s long service with his employer.

What did the tribunal not require as “reasonable adjustment”?
The tribunal stressed that they did not expect the NHS to lower the pass percentage of the competitive interview.

What does this mean for practice managers?
The duties imposed on employers by Section 15 of the Equality Act 2010 require that you must be aware that when a process (such as the redeployment process in this case) means a disabled employee has an impassable obstacle (in this case passing the competitive interview) you must look for reasonable alternatives.

CAN WE EXPECT CHANGES IN UK EQUALITY LAW?

The Equality Act 2010 defines certain protected groups and allows members of those groups who are discriminated against to bring discrimination claims. The Act does not currently allow indirect discrimination. However, a recent Bulgarian case heard at the Court of Justice of the European Union (CHEZ Razpredelenie Bulgaria (Judgment) [2015] CJEU C-83/14 (16 July 2015) is likely to mean a change for the UK.

The Bulgarian case (which was actually concerned with an allegation that the placing of electricity meters up to 7 metres above the ground in Roma-dominated areas, as opposed to 1.7 metres above the ground in other areas, could be in contravention of the Race Directive) held that, under EU law, individuals who share the disadvantage of the protected group can bring discrimination claims even though the individual is not actually part of the protected group, making indirect discrimination cases easier.

This case does mean that we may see further preventative changes to the Equality Act because the UK must always comply with EU law.