A tribunal has ordered that an employer must pay an employee who was suffering from throat cancer over £115,000 in compensation. What did the employer do wrong?

The case of Waddingham v NHS Business Services Authority 2015 is an interesting one for employers and highlights the importance of having the correct HR advice and policies in place.

Redeployment

Having been notified that his job role was to be axed, Mr Waddingham (W) was put into a redeployment exercise along with various other NHS Authority employees who had been made redundant. The redeployment exercise involved matching individuals to potential new job roles, giving them the opportunity to apply and interviewing them.

Around the same time, W was diagnosed with throat cancer for which he needed to undergo radiotherapy treatment. After W started his treatment he applied for an available job position under the redeployment process. He was offered an interview which he accepted. Knowing that he was having radiotherapy for throat cancer, the NHS Authority said it was flexible with the date and time of the interview. It also advised that he could take breaks at any time or call a complete halt to the interview and rearrange it.

Poor performance?

Unfortunately, W didn’t perform too well when answering the interview questions for this job role and wasn’t appointed as a result. Further down the line he did successfully apply for an alternative NHS job and was appointed. Despite this, W brought a claim for disability discrimination against the NHS Authority. This was on the basis that his cancer treatment had affected his performance at the first interview and was the reason why he didn’t get the job.

Upheld

The tribunal upheld his claim and awarded a considerable sum in compensation.  W was awarded £115,056.42 compensation, made up as follows:

  • £73,270.50 for lost earnings;
  • £27,666 for lost pension;
  • £5,625 for injury to feelings and
  • £8,494.92

So where did the employer go wrong? Under the Equality Act 2010, all cancers are classed as a disability from the point of diagnosis. That means you:

(1) can’t discriminate against a sufferer because of it; and

(2) have a legal duty to make all reasonable adjustments.

It was this second point that tripped up the NHS Authority and it was considered that they hadn’t gone far enough to make all reasonable adjustments. Although it had offered flexibility during the interview, the tribunal held it would have been a reasonable adjustment for W to be assessed without going through a competitive verbal interview process; a suitability assessment could have been made using other means, for example W’s previous appraisals. Therefore, the NHS Authority had failed to make all reasonable adjustments and that amounted to disability discrimination.

Outcomes

As a general rule, the onus is on the individual to tell you if they need any special arrangements at an interview on account of disability or other ill-health problems. The only exception to this is where it’s obvious to the employer that something is potentially a discriminatory barrier, such as asking a person with throat cancer to participate in a verbal interview.

How can we help?

You can read more in our Employer’s Guide to Discrimination which is in our HR Toolkit. If you feel you would benefit from a face to face consultation (for free) or further information and HR advice on how you can ensure you are ready to manage such situations, please give us a call to discuss your options 01473 360160.