A recent case raises a difficult issue for employers: when should a requirement for competitive interviews be disapplied or modified for disabled job candidates?
Mr Charles originally worked as an Environmental Enforcement Officer at the London Borough of Southwark. He had a disability: ‘sleep paralysis agitans’. This meant that he awoke at night, paralysed and unable to go back to sleep. In time this led to depression. As a result of his disability, an Occupational Health report found that Mr Charles was unfit to attend “administrative meetings” which an Employment Tribunal found (by extension) meant competitive interviews.
When Mr Charles’ job was later put at risk of redundancy, he was invited to express an interest in attending job interviews for alternative positions.
HR and Occupational Health made attempts to contact Mr Charles and to assess his (apparently limited) interest in certain alternative roles. They also contemplated making adjustments for him after the interview process itself. Importantly, however, they didn’t dispense with (or adjust) the need for an interview itself.
On the facts, an Employment Tribunal made a finding of disability discrimination.
So should disabled employees be automatically selected without interviews?
In a word, no.
There is a positive duty on employers to make reasonable adjustments for disabled job candidates. The key code of practice in this area helpfully sets out that adjustments can include “modifying procedures for testing or assessment” or “transferring the worker to fill an existing vacancy”.
In the past, the House of Lords has said that disapplying a competitive interview process, even for a higher-graded position, might be a reasonable adjustment.
On the other hand, however, it is clear from a case involving Sheffield Hallam University that an employer doesn’t have to water down the core competencies of a role or to appoint someone they have no faith in.
It is fair to say that each case will depend on its facts; for Mr Charles, there were a number of factors which appear to have made it reasonable to consider adjusting the interview requirement:
- the alternative role Mr Charles could have been selected for was two grades below his old one – he wasn’t being promoted beyond his abilities;
- because his situation concerned redundancy (and alternative employment) there was the option to ask his managers for an assessment of his abilities instead of insisting on an interview;
- other options were potentially available, such as interviewing Mr Charles at home, having a less formal interview and/or requiring information in advance.
There is no requirement to abandon interviews for disabled candidates. Any adjustments must be reasonable and eliminate a disadvantage suffered. As such, the situation depends on the disability in question and the disadvantage the candidate suffers as a result.
There has to be evidence (whether the candidate is a new recruit or redeployed) that modifying or waiving the interview would be an essentially “reasonable” step that would make a difference to the outcome.