Disabled Employee

Welcome back, your weekly dose of case law is fresh off the digital press. This week’s case concerns redeployment, reasonable adjustments and disability discrimination. It is a rare example of an employee bringing a claim without actually being dismissed.

Today’s questions:

Can a disabled employee be exempt from a redeployment pool and placed straight into a position?

Would allowing a disabled employee an exemption from a competency test be a reasonable adjustment?

Mr Muzi-Mabaso, the Claimant, worked for HM Revenue & Customs, the Respondent. The Claimant suffered from stress and depression to the extent that he qualified as disabled under the Equality Act 2010.

The Claimant was temporarily transferred to a higher level position whilst he began a training course to qualify for an even higher position. However, the Claimant failed the course and subsequently began a long term absence due to his disability. The Claimant’s failure to pass the course resulted in him having to revert back to his original role at the Respondent. However, there was currently little work in the area for the Claimant’s original role.

The Claimant was notified that as there was not a substantive amount of work for him to do he would be placed into the Respondent’s redeployment pool. He was informed that applications for internal positions were open competition. The Respondent did not explain to the Claimant whether or not he would be made redundant if he was not successfully redeployed.  The Respondent then began recruiting for roles for which the Claimant was eligible.

At this point the Claimant disclosed that owing to his disability he had a phobia of job application processes which put him at a disadvantage. The Respondent held a meeting with the Claimant and a manager helped the Claimant complete the application form. The manager suggested that the Claimant displayed competency for the job and potentially an even higher grade position.

The Claimant then refused to sit the online test involved in the application process as he was too stressed on account of his phobia. The Respondent offered the Claimant the chance to sit the exam in a separate room with a manager there to explain each step to him. The Claimant rejected this as he did not want to risk triggering his condition. The Claimant said the test was not an essential part of the selection process.

The Claimant provided medical evidence that suggested he might not be able to sit the test. However the Respondent rejected his request because as a large employer it had received over 4000 applicants for the position and the test was an essential part of assessing the candidate’s aptitude. It elaborated by saying that other disabled candidates had sat the test.

After the Respondent’s refusal to make the adjustment of allowing the Claimant to skip the online test, the Claimant brought two disability discriminations claims against the Respondent.  One for indirect discrimination and one for failure to make reasonable adjustments, the reasons for both were due to the Claimant being put in a redeployment pool and being required to take an online test. Furthermore he believed he should have been exempt from the process and simply been redeployed into another role.

The ET rejected the claim. It stated that the test was a necessary means for the Respondent to filter thousands of candidates and therefore it was not unreasonable to expect the Claimant to sit it. It further stated that by being in the pool the Claimant was being helped by the Respondent to gain work and that it was unreasonable for the Claimant to expect to be put straight into a role.

The Claimant appealed to the Employment Appeals Tribunal and the EAT allowed the appeal. It found that the Claimant had been discriminated against and ruled that the ET had made an error in saying that the online test was necessary as the Claimant’s manager had already said he showed competency in the previous section of the application process. It also stated that as the Respondent had not explained to the Claimant whether or not he would be made redundant if redeployment was unsuccessful he would understandably feel stressed during the application process.

The takeaway points from today::

In this case disabled employees should not be exempt from redeployment pools. Despite not having the process explained to him fully the Claimant was at no real disadvantage for being in the pool, however certain aspects of redeployment may need to be adjusted.

A disabled employee may be exempt from a competency test if the employer has the belief that they are competent already. In this case the Claimant’s disability and the Respondent’s inability to make reasonable adjustments suggest that the employee should be exempt as the Respondent already believed the Claimant was competent.

For more cases about disability discrimination click here.