hmctsA former NHS employee has won substantial damages after he was successful in a disability discrimination claim against the Trust that he was previously employed by.

Mr Waddingham brought a claim against the NHS Business Services Authority after his dismissal in 2013 and was awarded £115,000 in compensation earlier this year, with an Employment Tribunal finding the NHS Trust liable for discrimination arising from disability and a failure to make reasonable adjustments for his disability after he was required to undergo a competitive interview process despite undergoing treatment for cancer at the time.

Mr Waddingham commenced employment with the NHS in 1984 and worked in a variety of roles in the organisation. In 2012 Mr Waddingham was informed that his role was at risk of redundancy because of a reorganisation. The reorganisation involved redundant staff being moved into new roles if there was at least a 51% match between their old role and new role, and then being interviewed for the new role if a match was established. Only if the staff member scored 75% in the interview would they be considered for appointment to the role.

He was diagnosed with throat cancer at the end of 2012 and began radiotherapy treatment in early 2013. Shortly after he commenced radiotherapy treatment he applied for a vacant position and agreed to undergo the competitive interview process, knowing that the position would only be available for a short period of time. He only, however, scored 54% for his answers to the interview questions, short of the 75% score required, and was not appointed to the position.

After his failure to obtain the position Mr Waddingham brought Employment Tribunal claims for discrimination arising from disability (under s.15 of the Equality Act 2010) and for his employer’s failure to make reasonable adjustments for his disability (under s.20 of the Equality Act 2010).

An Employment Tribunal upheld Mr Waddingham’s claims for discrimination arising from disability and failure to make reasonable adjustments.

The Tribunal found that it is likely that he had been adversely affected by having to undergo the competitive interview process as he was fatigued, was under the influence of a “cocktail of drugs”, had attended hospital for radiotherapy on the morning of the interview, was not eating well, and had not had the time to properly prepare for the interview, and therefore that this adverse treatment had arisen because of his condition. The Respondent failed in its argument that the failure to appoint him to the position had a legitimate aim, as it wished to appoint the best candidate for the role.

The Tribunal also found that it would have been a reasonable adjustment for Mr Waddingham to have been assessed for the role without the need for a competitive interview and that other materials available from his long service (including previous appraisals) could have been utilised instead.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Organisations have a duty towards their employees (as well as other types of worker) not to subject them to unfavourable treatment because of their disability, or fail to put in place reasonable adjustments for their condition. In this case the employer failed to uphold these responsibilities and was found liable.”

 

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