The claimant’s current role in the NHS involved many phone calls, and his employer had allowed reasonable adjustments in respect of his stammer. Another NHS employer withdrew its job offer for a role which was similar (albeit the calls could be more challenging), saying it could not accommodate his stammer as regards difficulties speaking on the phone in front of colleagues. The tribunal held that the new employer failed to make reasonable adjustments of having a trial period, offering him an enhanced induction/familiarisation process, and enabling him to work in another office if it was free. The tribunal also upheld a claim of discrimination arising from disability; it would be proportionate to try the claimant in the role with reasonable adjustments in place.
2023, Employment Tribunal. Full decision (gov.uk).
Summary
The claimant had a stammer, which was more severe when speaking in front of people he did not know well. He already worked at a hospital dealing with subject access requests and speaking on the telephone. His existing employer had made adjustments (below) involving flexibility in allocation of phone calls, and possible use of a private space away from his colleagues. Having been in the job since 2011, the claimant now rarely needed to use the adjustments.
He applied for a similar job with Pennine Care, an NHS Trust focused on mental health and learning disabilities. Phone calls in the new job would potentially be more challenging because of patients’ mental health difficulties, and sometimes their long history of treatment.
Pennine Care accepted him for the job knowing of his stammer. However it withdrew the job offer after he asked about it making reasonable adjustments in respect of issues with him using the telephone in front of colleagues. Pennine Care said it did not believe it could make adjustments that would be fair to everyone.
The employment tribunal partially upheld his claim that Pennine Care was in breach of the Equality Act (EqA). Firstly Pennine Care had failed to make the following reasonable adjustments (below):
- having a trial period;
- offering him an enhanced induction/familiarisation process, to introduce him to his colleagues and the environment before undertaking telephone work; and
- enabling him to work in another office, if one was free.
Secondly, Pennine Care was in breach of s.15 EqA (discrimination arising from disability), below. In particular, it was not proportionate for Pennine Care to withdraw the job offer without trying the claimant in the role with such adjustments as should reasonably have been made.
My comments are below.
Facts
The claimant claimed he was subjected to unlawful disability discrimination when Pennine Care withdrew an offer of employment as a Subject Access Coordinator (§9).
Pennine Care provided mental health and learning disability services in Greater Manchester. Its recruitment and selection policy stated (§12) “No applicant should be refused employment on health grounds unless
- Occupational Health advice has been sought.
- The applicant has had the opportunity to discuss issues raised with an occupational health professional.
- The recruiting manager has given full consideration of the facts. …”
The claimant had “a speech impediment. He stammers and this is worse when he is under stress. It is worse when he is speaking in front of people he does not know well.” (§14)
He applied for the job of Subject Access Coordinator within Pennine Care’s Subject Access and Freedom of Information Department. On his application form, he indicated that he was disabled. Pennine Care said it was “disability confident”, and its recruitment policy included mandatory shortlisting of disabled candidates for interview where they met all of the essential criteria. (§15)
Claimant’s existing role and adjustments
At the time the claimant applied for the new job, he was working at Stepping Hill Hospital for a different NHS Trust dealing with acute conditions. He had worked there since 2011. He was still there at the time of the hearing, as he had remained when Pennine Care withdrew its job offer. (§16)
The new post with Pennine Care would have involved the claimant working much closer to home, enabling him to walk to work, saving fuel and parking charges. The post would also be in a higher band than his existing post, giving higher income and benefits. (§17)
Like the role for which he applied with Pennine Care, the claimant’s role at Stepping Hill Hospital included dealing with subject access requests and speaking on the telephone (§19). His employer at Stepping Hill had made adjustments because of the claimant’s speech impediment:
18. … When he started in the Department, an arrangement was made so that the amount of calls he was expected to handle was limited and gradually increased over time as he grew in confidence. He works in a small open plan office. At most, there have been six people in the team. When calls come to the Department, they are directed to a central number but are then allocated electronically by the telephone system to the different members of the team. Initially, the claimant’s desk phone was not included on the system, so he did not automatically receive any incoming calls. However, if another of the desk phones rang and the relevant member of staff was not present, the claimant would be able to pick up the phone. In recent years, as the claimant has become more comfortable and confident in the working environment and relaxed working and speaking on the telephone around his colleagues, his desk phone has been included in the electronic allocation system. When making this change, the claimant’s managers made it clear that if he was not comfortable to take a particular call at any given time he need not do so, and it would be picked up by someone else. The adjustments are still available to the claimant if he needs them. The claimant, in the last few years, has spent about 60% of his time on the telephone. As late as January 2022, the claimant was still able to take calls in a private space away from his colleagues. … We find that the adjustments remain in place in case needed by the claimant, but he rarely needs to use them. …
Compared with Stepping Hill, some of the phone calls in the new job at Pennine Care would potentially be more challenging as the latter was dealing with people who had, or had a history of, mental health difficulties, and some had a long history of treatment by Pennine Care. The requests at Stepping Hill were in the context of treatment of acute medical conditions, which were unlikely to have the same long and complicated history. (§33)
Interview, offer and withdrawal
During the job interview at Pennine Care, it was clear to the two interviewers B and C, from the claimant’s speech, that he had a speech impediment. They asked no questions about his disability. When invited to make any additional closing comments, the claimant told them that the disability indicated on his application form was the speech impediment. He expressed the view that the responsibilities in the role were very similar to those in his current role, and that he felt comfortable that he could fulfil the role in the same way as at Stepping Hill. The interviewers did not ask the claimant whether he would need any adjustments and the claimant did not, at this stage, volunteer that he would need any. The interviewers did not ask whether he had any adjustments in place at Stepping Hill, and the claimant did not volunteer this information. The interviewers’ notes recorded in relation to the speech impediment: “Doesn’t stop him; doesn’t affect ability to do the job; doesn’t cause any issues.” The tribunal said these notes reflected the understanding of B and C based on what the claimant told them at the interview. The claimant also told them that his impediment was worse when he was nervous. (§21)
C subsequently telephoned the claimant and offered him the role (subject to DBS checks and references), which he verbally accepted. The next day the claimant emailed C saying, among other things, “In my current role they avoid me using the phone in front of colleagues due to my speech impediment. Would you be able to support in this? I can assure this doesn’t affect me doing the role./ I’m happy to discuss this on the phone if you wish to.” B and the claimant had a phone conversation discussing his stammer and what adjustments he wanted. B then had discussions with C and the other Subject Access Co-ordinator, and with HR. B asked HR if a trial period was an option, but they told him the Trust did not operate probationary periods. (§25-30)
B decided to withdraw the job offer. The tribunal made the point that he did this without any further discussion with the claimant about what adjustments might be needed, and that B did not seek advice from Occupational Health before withdrawing the job offer or give the claimant the opportunity to discuss issues raised with an OH professional. B agreed in evidence that he withdrew the job offer in part because the claimant needed adjustments they did not feel they could offer. (§31)
B telephoned the claimant to inform him that the job offer was withdrawn. After the claimant asked him to reconsider, B emailed the claimant saying:
- the Trust’s reason for withdrawing the offer wasn’t the speech impediment itself, but that the claimant had assured them at interview that the speech impediment would not interfere with his ability to work and had not mentioned his “current working restrictions”, and also that the claimant had not mentioned a request for regular time off to help his grandfather (a request since withdrawn by the claimant). The Trust felt misled by the claimant not having mentioned these things until after the post had been offered.
- B’s email went on to say that the role involved using the telephone, often with individuals with complex mental health presentations. They were often challenging phone calls. The Trust had looked at what reasonable adjustments it could make and “do not believe we can make adjustments that are fair to you and also fair to the existing staff, and the complex needs of the patients that contact us, particularly during the current uncertainties with different ways of working during Covid – requiring a mix of office and home working, expectation of the role and post-holder, and also possible changes and expectations to provide cover to other Departments as part of the Corporate Redesign Programme.” (§36-38)
The claimant put in a grievance but this was not resolved. After ACAS early conciliation, the claimant made a claim to the employment tribunal (§40-52)
Office arrangements at Pennine Care
The claimant would have been working in a team of seven. In this team he would have been one of the two Subject Access Coordinators. Due to the Covid-19 pandemic, employees in the team were working from home so far as possible. Of those in the administration office, only the Subject Access Coordinators would be working in the office because of the paper-based nature of their work. The predecessor in the post for which the claimant was applying had worked from home, but the tribunal accepted B’s evidence that this was not working. There were difficulties in getting relevant papers to the person working from home, and the other Subject Access Coordinator was having to deal with everything in the office. The other three administrative staff worked from home, and the managers did a mixture of office and home-based working. There were two or three people at any one time in the office. B might be working in the manager’s office but this might be free, if he was working at home. There was an expectation of moving headquarters at some point, but they did not know what the office environment would be like there. (§32)
Held: The employment tribunal upheld claims for disability arising from discrimination (below) and for failure to make reasonable adjustments (below). It rejected the claim for direct discrimination.
Decision: Direct discrimination (s.13)
The claimant argued there were sufficient facts from which the tribunal could infer that the withdrawal of the job offer was direct disability discrimination. The result would be that the burden of proof shifted to the Pennine Care (s.136 EqA) to prove it was not direct discrimination. The tribunal accepted that matters from which inferences could potentially be drawn were (§89):
- Pennine Care clearly acted in breach of its recruitment policy by not involving occupational health before withdrawing the job offer
- there was no meaningful discussion with the claimant about adjustments before the offer was withdrawn
- given his senority and role, B did not demonstrate the level of knowledge the tribunal would have expected about EqA issues and Pennine Care’s own policies
- Pennine Care’s failure to provide an outcome to the complaint other than to ACAS.
However the tribunal decided that these points did not prove facts from which the tribunal could conclude that the claimant, by having the job offer withdrawn, was treated less favourably, because of his disability, than a hypothetical comparator in the same or not materially different relevant circumstances would have been treated. The relevant circumstances of a hypothetical comparator here were that the comparator, for reasons other than disability, could not do all parts of the job without special arrangements being made. The tribunal had no evidence from which it could conclude that there was less favourable treatment than would have been given to such a comparator. (§91)
Even if the burden of proof had shifted to Pennine Care, the tribunal held Pennine Care had proved that the withdrawal of the job offer was not “because of” the claimant’s disability. Pennine Care was aware of his speech impediment when it offered him the job. The withdrawal of the job offer was triggered by the claimant writing about adjustments which he required to be able to do the job. Pennine Care formed the view that these adjustments could not be made so he could not do the job, and also that he had misled Pennine Care. Pennine Care did not withdraw the job offer because of the disability per se. (§92)
Decision: Discrimination arising from disability (s.15)
Discrimination arising from disability under s.15 EqA is where someone treats a disabled person unfavourably “because of something arising in consequence of” the disability. They are liable if they have actual or constructive knowledge of the disability and cannot show that the unfavourable treatment was justified.
There was no dispute that the withdrawal of the job offer was unfavourable treatment within s.15 EqA. Was the withdrawal of the offer because of something arising in consequence of the claimant’s disability. The “something arising” was identified in the list of issues as “the speech difficulties exacerbated in circumstances where the Claimant is obliged to speak in front of others he does not know well” (§95, Annex at No. 3). Pennine Care raised an argument here that I don’t really understand, but in any event the tribunal rejected it. The unfavourable treatment was because of something arising in consequence of disability, namely the something identified by the claimant in the list of issues (§94-95).
Pennine Care accepted that it knew of the disability (§2), so Pennine Care was in breach of s.15 EqA unless it could show its withdrawal of the offer was a proportionate means of achieving a legitimate aim (justification).
Pennine Care relied on the legitimate aim of employing a person to carry out the role of subject access coordinator in the specific environment and circumstances in which Pennine Care operated. The tribunal accepted that this was a legitimate aim. (§96)
Was withdrawing the offer a proportionate means of achieving that aim? The tribunal had to do a balancing exercise between the discriminatory effects of the treatment on the claimant and the reasonable needs of Pennine Care (§97):
- The discriminatory effects of the treatment on the claimant were clearly severe. He lost the opportunity of employment in that job, which would have reduced his travel costs and given him a higher income, and he suffered embarrassment when he had to tell people who he had told he was leaving his current work for a new job that he was no longer doing so.
- Considering the needs of the employer, Pennine Care had a reasonable need for someone to do the role for which they were recruiting, including that person working mostly in the office. The tribunal rejected the claimant’s argument that there was no real need to be in the office. The paper-based nature of the work meant that access to the files was required and this could not reasonably be done other than in the office. Pennine Care had tried having one subject access controller working from home and concluded that it had not worked. Pennine Care had genuine and serious concerns about the impact on the other, office-based, subject access controller, if the claimant was based wholly or mostly at home.
The claimant had done a similar job at Stepping Hill although there were some differences, including that some calls for the new employer would be more difficult because of the mental health context. Adjustments were still available to the claimant at Stepping Hill but he did not often need to take advantage of these. (§98)
The tribunal’s conclusion was that the Pennine Care had not shown withdrawal of the job offer to be a proportionate means of achieving a legitimate aim. Pennine Care should at least have offered a trial period:
99. We do not consider that [Pennine Care] could reasonably conclude, without reference to occupational health, in accordance with its own recruitment policy, and discussion with the claimant, that the claimant could not do the job without adjustments being made which [Pennine Care] could not reasonably accommodate. As we conclude when dealing with the complaints of failure to make reasonable adjustments, we consider that a reasonable adjustment would have been having a trial period [below]. Without trying the claimant in the role with such adjustments as should reasonably have been made, we conclude it was not proportionate to withdraw the job offer.
His claim for discrimination arising from disability (s.15 EqA) therefore succeeded.
Decision: Failure to make reasonable adjustments (s.20)
Where any “provision, criterion or practice” (PCP) applied by or on behalf of an employer puts a disabled person at a substantial (ie more than minor or trivial) disadvantage in comparison with persons who are not disabled, the employer is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage: Reasonable adjustment rules: employment. The employer has a defence if it did not have actual or constructive knowledge of the disability and disadvantage.
The claimant here argued there were five PCPs in respect of which Pennine Care should have made reasonable adjustments, but the tribunal accepted only one of them, PCP2.
PCP2: Employees taking calls in front of colleagues
Pennine Care accepted that it applied such a PCP, and that the PCP put the claimant at a disadvantage. “It was more difficult for the claimant, because of his speech impediment, to speak in front of others, than for others without that disability.” Pennine Care also conceded that it had knowledge of this disadvantage (§103).
The tribunal therefore went on to consider the adjustments proposed by the claimant, and concluded that the following would be reasonable adjustments (§110):
- having a trial period (below);
- offering the claimant an enhanced induction/familiarisation process (below) to introduce him to his colleagues and the environment in which he would be working before he was required to undertake telephone work (on the basis that the effects of his speech impediment were exacerbated when he was in unfamiliar surroundings and/or speaking in front of unfamiliar people); and
- enabling the claimant to work in another office (below), if one was free.
Trial period (accepted)
There was conflicting legal authority on whether a trial period could be an adjustment alleviating disadvantage. The tribunal preferred the Court of Appeal authority of Smith v Churchill Stair Lifts which upheld a decision that a trial period was a reasonable adjustment. (§106, 80) [My comment: below Comments: Trial periods.]
In the present case, a trial period had a chance of alleviating the disadvantage (cf §78). It would be an adjustment to the Pennine Care’s normal practice of not having a probationary period. The tribunal continued:
106. … We conclude that there was a chance that the claimant would have managed to make phone calls in front of the one other employee likely to be in the office without other adjustments or that, in practice, the claimant would have been able to find another office free where he could make calls, until he became sufficiently comfortable to make calls in front of the other employee. The claimant was managing to make calls in front of a number of employees at Stepping Hill hospital, only rarely needing to make use of the adjustments. Having gained confidence in his role at Stepping Hill hospital, there is at least a chance that he would have been able to overcome the difficulty of speaking in front of one other employee within a relatively short period. …
The tribunal concluded that it would have been reasonable for Pennine Care to make the adjustment of having a trial period. It was in the nature of a trial period that, if the arrangement was not working in practice, the employment could be terminated. (§106)
Enhanced induction/familiarisation process (accepted)
The next proposed adjustment was that of offering the claimant an “enhanced
induction/familiarisation process to introduce him to his colleagues and the environment in which he would be working before he was required to undertake telephone work (on the basis that the effects of his speech impediment are exacerbated when he is in unfamiliar surroundings and/or speaking in front of unfamiliar people).” (§107)
The tribunal concluded that this had a chance of success for the same reasons as the proposed trial period, and that it would have been reasonable for Pennine Care to make this adjustment. (§107)
Working in another office, if free (accepted), and related proposals
Further proposed adjustments were to “enable the claimant to work from a private space within the office, either generally or when he was required to use the phone or, alternatively, to enable the claimant to work from an alternative location (including full-time remote working) to enable him to use the phone in a private space”. (§109)
To the extent that the proposed adjustment suggested the claimant working in the same physical office as the other post-holder, the tribunal did not consider that the use of partitions, for example, would have alleviated the disadvantage. The claimant would still have been aware that he could be heard by the other employee. (§109)
However to the extent that the proposed adjustment related to the claimant working in another office, if one was free, to which the claimant could take the relevant physical files, the tribunal considered this had a chance of alleviating the disadvantage and would have been a reasonable step for Pennine Care to take. Telephone calls could have been diverted to a mobile phone so the claimant could take the calls in another office. Whilst there was no guarantee that another office would always be available, the tribunal concluded that there was a reasonable chance that another office would be available on a sufficient basis for this adjustment to have a chance of alleviating the disadvantage. (§109)
As to full-time remote working, although this would have alleviated the disadvantage it would not have been a reasonable step for Pennine Care to take. The full job could not be done remotely. This had been trialled with a previous employee and found not to work. The claimant would need access to the physical files to do the full job and if additional burdens were not to be placed on the employee in the office. (§109)
Reallocating duties (rejected)
A further adjustment proposed by the claimant was “reallocating duties to remove/reduce the requirement for the claimant to speak on the phone. In particular, to reduce/remove the requirement for him to do so during quiet periods in the office when his phone calls were more likely to be overheard by colleagues”. (§108)
The tribunal concluded that this would have had a chance of alleviating the disadvantage, but it would not have been reasonable for Pennine Care to take this step. Speaking on the phone was an important part of the role, and Pennine Care needed someone to do the full job, including taking telephone calls. If not, phones would go unanswered to a greater extent, and/or a considerable burden would be put on the other Subject Access Coordinator. Pennine Care had concerns about this person’s mental health, and it would not have been reasonable to take any steps which might adversely affect that employee. (§108)
Undertaking further enquiry with the claimant
The claimant had proposed adjustments of “undertaking further enquiry with the claimant to explore ways in which his needs could be accommodated before withdrawing its offer” and “inviting the claimant to a meeting to discuss the impact of his condition and what adjustments might be required”.
Applying the legal authority of Tarbuck, the tribunal held that these were not in the nature of reasonable adjustments which could alleviate disadvantage: see Reasonable adjustment rules: Employment>Assessment, consultation and trials. They were steps on the way to identifying what might be adjustments which would alleviate the disadvantage. (§105)
Other PCPs rejected
The tribunal held the following were not PCPs or were not applied by Pennine Care:
PCP1: Requiring employees to conduct calls with the public without a speech impediment
Pennine Care did not have such a PCP. It offered the claimant the post knowing that he had a speech impediment. (§101-102)
PCP3: Operating its recruitment process in a way which was misaligned to its own portrayal of being an “equal opportunity and disability confident employer”
The tribunal was not satisfied this was a PCP. There must normally be some element of repetition for something to be a PCP (Reasonable adjustment rules: Employment>Can a one-off decision be a PCP?). The tribunal had no evidence that Pennine Care routinely operated its recruitment process in this way, failing to follow its own policies. (§111)
PCP4: Not fully exploring the limitations of the claimant’s impairment
This was not a PCP. It did not have the necessary element of repetition. (§112)
[My comment: See PCP3 on need for an element of repetition. It might also be argued that PCP4 was not in the nature of a reasonable adjustment which could itself alleviate disadvantage: see Reasonable adjustment rules: Employment>Assessment, consultation and trials.]
PCP5: The prolonged nature of the employer’s grievance process in this case, including failures to provide responses and poor communication to the claimant
The tribunal concluded this was not a PCP. The claimant was relying on what happened in this particular case. The tribunal had no evidence that there was a general practice of dealing with grievances in this way. The asserted PCP did not have the necessary element of repetition (Reasonable adjustment rules: Employment>Can a one-off decision be a PCP?). (§113)
Adjustments to the tribunal hearing
At the request of the claimant, the tribunal took breaks around every 20 minutes when he was giving evidence. (§8)
Remedy
The tribunal said there would be a remedy hearing in July 2023. This will doubtless consider the amount of compensation to be awarded, unless agreed by the parties.
My comments
Comments: Rare successful claim
It is rare to win a claim in respect of stammering that gets as far as an employment tribunal decision. So the decision is particularly welcome in that respect. Of course other claims may settle before getting to the tribunal.
Comments: What if job had not already been offered?
Here the employer withdrew a job offer it had already made. What if the employer had simply rejected him after the interview and appointed another candidate instead? (Note: It’s not clear if there were other candidates here.) One might think logically the result should be the same, but it’s difficult to be sure it would be. The waters might be muddied by how the interviewers assessed/scored the claimant versus other candidates, which might be influenced by the stammer. The claimant would still have possible claims, eg that being rejected by the interviewers’ decision for a reason arising from the stammer was not proportionate under s.15 EqA, and that a trial period would be a reasonable adjustment. However the context might be whether these were proportionate and reasonable given the other candidates, and in light of how far the tribunal sees the scoring system etc as justified. Any scoring/assessment of abilities at recruitment should normally take into account reasonable adjustments that could be made in the job (cf Oral assessments in recruitment>Why allow for reasonable adjustments in job itself), but it is less clear how to deal with uncertainty as to how effective adjustments will be.
If an EqA claim is easier in respect of withdrawal of an existing job offer, that could lead to the odd result of it being legally advantageous for a disabled person not to be upfront before a job offer of what reasonable adjustments they may need.
The employer said that (at least partly) it had withdrawn the job offer as it felt misled. The tribunal did not really pursue this, but for some discussion see Recruitment: Should I tell the employer I stammer?>Responding incorrectly to a question on disability.
Comments: Trial periods
I think the tribunal was right to hold that a trial period can be a reasonable adjustment: Reasonable adjustment rules: Employment>Trials.
See too Oral assessments in recruitment>Work trial / probationary period.
Comments: Other adjustments
For more on other adjustments discussed in this case, see:
- Enhanced induction/familiarisation process: Examples of reasonable adjustments: In the job>Open plan offices: Enhanced induction/familiarisation process
- Working in another office: Examples of reasonable adjustments: In the job>Open plan offices: Separate room for phone calls
- Reallocating duties: Examples of reasonable adjustments: In the job>Telephone: Reallocating duties
Comments: Pre-employment enquiries and s.60 EqA
S.60 EqA bans many pre-employment enquiries about health and disability. Would there have been scope to discuss reasonable adjustments required in the job (so far as they related to intrinsic functions), even before a job offer was made? Often the answer is yes. Under s.60, broadly a question is permitted so far as it is necessary for the purpose of establishing whether the candidate will be able to carry out a function that is intrinsic to the work – after making any reasonable adjustments if the employer reasonably believes there would be an adjustment duty: see Pre-employment enquiries>Intrinsic job functions.
In this case, it seems likely the employer did not believe – at the interview – that the reasonable adjustment duty would arise. I’m assuming that the employer took from what the claimant said that he could do the job fine without adjustments. For so long as the employer did not have that belief, perhaps therefore the employer could only ask about ability to carry out intrinsic functions without adjustments. I think probably the employer could still have asked, say, “So you could do the phone calls without needing adjustments for your stammer?”, or even “Would you need any reasonable adjustments in relation to the phone calls?” It could be argued that this is still asking whether he can carry out intrinsic functions (without reasonable adjustments). If the answer to that question indicated a need for adjustments, perhaps the employer would then have the “belief” to entitle it to ask about what adjustments he would want.
This all seems rather technical. The relevant provision, s.60(7), is problematic. We don’t know how a tribunal would deal with it – tribunals may take a more broad brush approach.
Comments: “Speech impediment”
“Speech impediment” in this case evidently just means a stammer.
I don’t like the term “speech impediment”, but generally use it above where the tribunal does.
