Wade v Sheffield Hallam University3

The background to the claim

Mrs Wade suffered from a disability in particular an allergic condition. She was a librarian who had been employed at Sheffield University for more than 20 years and had been promoted to a senior department manager. Due to her condition arrangements were made for her to work “off campus”– effectively she worked from home.

In 2004, a university-wide restructure was carried out with a programme of what is described as repositioning, mapping or placing, also known as “slotting in”. As the employment tribunal described, when there is a restructuring and the job is the same as it was before, the expectation of the employee doing the job is that he or she will be slotted, placed, or mapped into the new role under the new structure. In the event Mrs Wade was placed on gardening leave and eventually was dismissed in January 2012.

In July 2006, Mrs Wade was interviewed for a vacancy but failed to meet two essential criteria and was rejected for that post. It was found that she lacked the ability to lead teams and to work within the newly restructured faculty of organisation and management.

In 2008, the same job vacancy arose again and was to be conducted by way of competitive interviews. At the same time Mrs Wade was informed that the job she had been doing prior to gardening leave no longer existed “it had been deleted”. In the circumstances she had the right be redeployed in that she would be given priority of consideration for a suitable post. She was to be interviewed and if she met the essential criteria and adjustments reasonably could be made to meet her condition, she would be redeployed into the post.

Mrs Wade attended the competitive interview but had an allergic reaction so the interview did not take place but the interview was rescheduled to a more favourable venue (this was a reasonable adjustment). However, at the interview it was found that she did not meet the essential relevant criteria, the panel found Mrs Wade saw the post as an extension of her previous role and that nothing much had changed. They did not have confidence of her ability to be forward thinking, adaptable or strategic.

The law and the decision

Under the relevant legislation there is provision that:

“Where -

a provision, criterion or practice applied by or on behalf of an employer…

places the disabled person at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice or feature having that effect”.

The tribunal found that Mrs Wade was at a substantial disadvantage by having to go through the interview process however, on the issue of whether it was a reasonable adjustment to “map” Mrs Wade into the role without a competitive interview they considered that such an adjustment would be tantamount to requiring the employer to automatically appoint her.

Whilst in Archibald v Fife Council 4 the House Of Lords considered that dis-applying a competitive interview process can be a reasonable adjustment, in this case the EAT said the question must depend upon the particular circumstances of the case including the extent to which the proposed step is practicable.

In this case, the EAT found that it would not be a reasonable adjustment to effectively dis-apply the essential ingredients of the job. The panel had found that she was not “appointable”. Although the employer was found to be under a duty to make a reasonable adjustment there was no breach of that duty because the adjustment contended for by Mrs Wade was not reasonable.