Waddingham v NHS Business Services Authority (ET/1804896/2013)


The above is an interesting case involving a gentleman who has a statutory disability who disadvantaged by the competitive interview process that was being gone through by his employer.

This is a situation a many disabled people find themselves in. For example, a person with and Autism Spectrum Disorder may claim that they are disadvantaged in an interview setting because of their impairment in social communication.

In this case Mr Waddingham was unsuccessful in a competitive interview for a post whilst undergoing treatment for throat cancer and it was found that he was discriminated because of something arising in consequence of his disability. An employment tribunal held that a reasonable adjustment would have been to assess the employee though evidence from his long service rather than a competitive interview, where it was clear that he was adversely affected by his performance at interview by the treatment he was undergoing for his cancer.

The Employment Tribunal also upheld Mr Waddingham’s claim of discrimination arising from disability made pursuant to section 15 the Equality Act 2010. 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 Mr Waddingham to undertake a competitive interview in the circumstances and attain the required score of 75% was not a proportionate way of achieving that aim.

This is a decision at first instance so is not binding. That said, it is compliant with Equality and Human Rights Commission Statutory Employment Code of Practice, namely  Chapter 5 – Discrimination arising from disability and Chapter 6 – Duty to make reasonable adjustments. Hence 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 in an interview situation alternative methods of assessment should be found.

Sean Kennedy