Reasonable Adjustments and Alternative Roles

Employers may be under a duty to make reasonable adjustments where a provision, criterion or practice puts a disabled person at a substantial disadvantage compared to others. A failure to make reasonable adjustments gives rise to a claim of disability discrimination.

Employers may be under a duty to make reasonable adjustments where a provision, criterion or practice puts a disabled person at a substantial disadvantage compared to others.  A failure to make reasonable adjustments gives rise to a claim of disability discrimination. 

Employers sometimes believe that they are under a duty to make any adjustment possible in order to allow the employee to remain employed. However, in the case of Wade v Sheffield Hallam University, the Employment Appeal Tribunal (EAT) has confirmed that this is not the case.

Mrs Wade was a long-standing employee of the University, having been employed since 1980.  Mrs Wade developed an allergic condition, which constituted a disability.  The University made some adjustments, including allowing her to work at home.  Mrs Wade had been off work since around 2004 and was placed on garden leave from December 2005, until her dismissal in January 2012.

Whilst on garden leave, a vacancy arose and Mrs Wade was interviewed, but she failed for two reasons: she lacked the ability to lead teams and to work within the newly restructured faculty of organisation and management, both of which were essential criteria.

In 2008, the same job arose again.  The Claimant attended the competitive interview but had an allergic reaction, which led to the interview being rescheduled.  She was unsuccessful at the rescheduled interview, as she was again found not to have met the essential criteria.

The Claimant made a complaint to the Employment Tribunal that by being made to undergo a competitive interview, the University had failed to make reasonable adjustments. In essence, the Claimant believed that there should have been a “much softer” assessment process.

The Employment Tribunal agreed that the requirement to undergo a competitive interview process was a provision, criterion or practice which put Mrs Wade at a substantial disadvantage.  However, the Tribunal found that the adjustment sought by Mrs Wade was tantamount to requiring the University to automatically appoint her when it felt that she was unappointable.  The University’s decision that Mrs Wade was not appointable was genuine and a decision which it was entitled to reach. 

The EAT agreed with the Tribunal, commenting that “although it may be upsetting to [Mrs Wade] and inconvenient for her to be so summarily described as not appointable”, and there was a duty to make reasonable adjustments, the adjustment sought in this case, being to waive the essential requirements of the role, was not reasonable.

As readers will be aware, discrimination law is now contained within the Equality Act 2010.  The regime in place at the relevant time in this case was the Disability Discrimination Act 1995, but the provisions relating to reasonable adjustments are similar, and therefore this case is still relevant.

Employers will be pleased with the EAT’s common sense view of this case.  It is worth remembering that the EAT was impressed with the reasonable adjustments which had been made for Mrs Wade, and clearly felt that the University had acted reasonably towards Mrs Wade.  In addition, the EAT noted that Mrs Wade “did not narrowly miss being appointed to this job”.  Therefore in cases where an employer has made no previous effort to make reasonable adjustments, or an employee was closer to meeting the essential requirements, the outcome may be different.