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Competitive interview leads to disability discrimination

Waddingham v NHS Business Services Authority

During a redundancy process, Mr Waddingham was diagnosed with cancer. This meant that he was disabled for employment law purposes, imposing additional obligations on his employer – including the duty to make reasonable adjustments.

He was interviewed for a new role within the NHS. But he didn’t hit the required 75% competency level and so wasn’t appointed. He claimed disability discrimination, and won; he had been put at a substantial disadvantage.

The tribunal held that it would have been reasonable for the employer to have assessed Mr Waddingham – a long-serving NHS employee – differently, by looking at his employment history and at notes of his appraisals. The 75% threshold didn’t need to be lowered, but the employer ought to have approached the assessment in another way. This should have included taking account of the effects Mr Waddingham’s cancer treatment would have on his performance at interview; his pain-relief drugs affected his concentration and caused fatigue.

One interesting point made by the tribunal was around the positive spin Mr Waddingham put on his situation. He was keen to press ahead with the interview, for instance. There’s nothing to say that an employer faced with similar facts couldn’t go along with that, rather than put the process on hold. But it wouldn’t be good enough to do so blindly – in other words, without properly considering all of the circumstances.

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