Where oral skills are genuinely required for a job, this page argues that assessing them through performance in an interview can be misleading (and so discriminatory). It looks at alternative ways to assess oral skills of someone who stammers. There is a specific page on Presentations in recruitment.
This page in summary:
- Oral skills should only be assessed so far as required for the job: below What is being assessed?
- This will almost always mean it is not fluency that should be assessed, only communication skills so far as required. A person who stammers may have excellent communication skills. Below What is being assessed?
- An oral interview is not an appropriate way to assess oral skils in the context of stammering, despite a case which seemed to think it might be. Effects of stammering are likely to be greater in an interview: below Oral interview not appropriate way to assess oral skills.
- Possible ways of assessing oral skills include:
- Looking at work history
- Specific skills test
- Probationary period / work trial.
- An assessment of oral skills should take into account any reasonable adjustments that ought to be made in the job itself: below Reasonable adjustments in job itself.
Possible adjustments to oral assessments are also discussed in the ‘Education’ section of this website: Oral assessments in context of exams.
Summary of legal background
The most important types of Equality Act claim as regards assessing oral skills are ‘discrimination arising from disability’ under s.15 and the reasonable adjustment duty.
In summary, this means that an assessment which disadvantages a disabled person potentially gives rise to two key legal issues (though tribunals may see these issues as not very different from each other):
- whether the employer can show that turning someone down because of their oral skills satisfies the ‘objective justification’ test under s.15; and
- so far as there is a provision, criterion or practice which is being applied in an assessment, whether it is reasonable for the employer to adjust this.
“Modifying procedures for testing or assessment” is expressly mentioned in para 63 of the Employment Code as an example of a possible reasonable adjustment.
More: Legal background (below).
Some tribunal cases
Reported cases so far on oral communication have been on reasonable adjustments, because ‘discrimination arising from disability’ only took effect from October 2010.
Wakefield v Land Registry, EAT, December 2008
An employment tribunal originally decided that a job candidate with a stammer should have been allowed to give written responses to interview questions, by way of reasonable adjustment. The employer had argued the oral interview was needed to test oral skills required for the job. The Employment Appeal Tribunal reversed the tribunal decision, largely on the ground that some findings of fact by the tribunal could not be supported.
Lowe v Cabinet Office, Employment Tribunal, 2011
A claim for reasonable adjustments to an assessment for the Civil Service Fast Stream failed. The claimant had Asperger’s Syndrome. The further adjustments she sought would have meant important competencies concerning relationships and communication were not assessed.
There have been other cases, not specifically on oral communication, where appeal courts have held that assessments as part of a recruitment process were in breach of the reasonable adjustment duty and other provisions such as ‘discrimination arising from disability’ (s.15):
British Telecommunications v Meier, Northern Ireland Court of Appeal, 2019
A job applicant was at a disadvantage in a situational judgment test because he had Asperger’s syndrome. This test was the initial stage in the recruitment process. The employer refused to interview him when he failed it. The court held this was a failure to make reasonable adjustments.
Government Legal Service v Brookes, EAT, 2017
A job applicant with Asperger’s syndrome asked the employer to allow her to give narrative answers in an assessment as part of a highly competitive recruitment process. She said the normal system of selecting from multiple choice answers put her at a disadvantage. The employer refused. The EAT upheld her claim for disability discrimination as regards failure to make reasonable adjustments, and under sections 15 and 19 of the Equality Act.
What is being assessed?
The first question is what skills are being assessed, and whether it is legitimate for the employer to be assessing that.
Any oral skills being assessed should be actually required in the job. An employer may sometimes ‘overplay’ what is needed for a job – see Presentations in recruitment for an example of this.
An employer may also argue it can assess ‘desirable’ skills. Whether competences being assessed are ‘essential’ or ‘desirable’, legally the issues are likely to be whether turning the person down satisfies the ‘objective justification’ test, and whether any criterion or practice of the employer should reasonably be adjusted (see Legal background below). The more important a competence for the job (after taking into account reasonable adjustments in the job), the easier it will be for the employer to satisfy the legal tests, and vice versa.
In Lowe v Cabinet Office, the Employment Tribunal considered it legitimate, in relation to the Civil Service Fast Stream, to assess skills in building productive relations and communicating with impact.
Generally it is not fluency that should be assessed but rather communication skills, so far as relevant to the job. It is perfectly possible for a person to have good communication skills while stammering: see Excellent communication skills (which includes examples).
A job may be said to need ‘good’ or ‘excellent communication skills’, but these are vague terms. Firstly, is the level of skills required actually overstated? Secondly, how far do they actually have to be ‘oral’ communication skills? In looking at that, any reasonable adjustments that may be made in the job are relevant (see below Reasonable adjustments in job itself). The situation is often more nuanced in that different jobs need different types and levels of oral skills, which the individual may or may not be good at. So far as the stammering is relevant, as discussed under Oral interview… below, people who stammer will often have greater or lesser difficulty with their speech depending on the situation.
In summary, if challenged, the employer potentially has to show that rejecting the person satisfies the ‘objective justification’ test under s.15. Also, so far as the employer applies particular criteria or practices in an assessment, eg how the employer scores a test etc, these can be subject to the reasonable adjustment duty.
What is being assessed: Effect on adjustments
What is legitimately being assessed will be important in deciding what adjustments to any assessment should be allowed.
If oral skills do legitimately need to be tested, substituting a written test is not likely to be a reasonable adjustment. However, there is still the question (discussed below) of how the oral skills of the person who stammers in the workplace can effectively be tested.
If oral skills are properly being tested, the test will need to be oral but adjustments may well be legitimate. The most obvious adjustment that may be appropriate is an extension of time. However there may be other adjustments, as discussed below.
Time taken to speak may of course be critical in certain jobs, such as an air traffic controller.
What is being assessed: Assessing other skills
Assessment of oral communication skills required for the job needs to be distinguished from oral tests to assess other skills. For skills other than oral skills, see ‘Examples of reasonable adjustments: Recruitment>Tests’. If a test is to assess both oral and other skills, it may be appropriate to separate the tests out.
Oral interview not appropriate way to assess oral skills
Moving on to ways to assess a person’s oral skills, the first thing to say is that an oral interview will not normally be an appropriate way to assess them. If a person’s stammer gives rise to problems in the interview, it cannot be assumed the person will also have such problems in the workplace.
It is very possible that the person will communicate more easily in the work situation than at the interview, even if the work situation might be seen as ‘more challenging’. A clear illustration of this:
In the Ohio firefighter case (a US case), the claimant could communicate at a blazing fire and was rated ‘excellent’ by colleagues, but was turned down because he stammered in the interview. The US court held this was discrimination.
There are also other examples of people who stammer working as a firefighter.
The issue of an interview being inappropriate to assess oral skills can arise in at least two situations:
- most commonly, where the person who stammers is happy to have an oral interview, but the employer wrongly uses it to judge his likely workplace communication;
- where, as in HM Land Registry v Wakefield (discussed below), the candidate wants to be allowed to give written responses to interview questions rather than have an oral interview, and the question is whether the employer can refuse because it wants to use the interview to assess oral skills relevant to the job.
The issue was discussed in HM Land Registry v Wakefield:
The Employment Tribunal said in HM Land Registry v Wakefield: “…we do not accept that it is reasonable to test at interviews a person known to have a stammering problem in that context when the aim is to ascertain how he will cope with challenges in a work context. If [the claimant] knew he was going to a meeting about a subject he had mastered he may not be dysfluent at all.”
I would say that is a very fair statement, given how stammering works.
On appeal, the Employment Appeal Tribunal (EAT) in HM Land Registry v Wakefield did not really address that as a general statement. It did seem to consider the oral interview could be a valuable tool in assessing how the candidate would communicate ‘in a more confrontational setting’ in the workplace.
However, the EAT’s comment misunderstands the nature of stammering. The British Stammering Association (BSA) stated in relation to the Wakefield EAT decision::
“BSA’s view on this is that factually an employer cannot assume that someone’s speech at a job interview will reflect how they will speak in a job situation (whether or not it is more confrontational). BSA would expect that effects of stammering would normally be significantly greater in an interview.”
‘DDA case on appeal’ (archive of stammering.org), March 2009
To address this point in future cases, where relevant, it seems important to bring appropriate evidence (e.g. in a speech and language therapist report) of the unreliability of the interview to assess oral workplace skills. The EAT’s view on ‘more confrontational’ settings was based on the EAT’s view of the evidence available in that case: “the evidence which is referred to cannot, in our judgment, justify the [Employment Tribunal’s] conclusion.”
Methods of assessing oral skills
Given the problems with using the interview, how might workplace oral skills of a person who stammers be assessed? I deal below with:
In HM Land Registry v Wakefield a speech and language therapist’s report recommended looking at “his work history of specific oral skills required for the post.”
In the case of a promotion, where the candidate is already working at the organisation, the employer could e.g. ask managers how his stammer actually affects him in certain aspects of his work.
Mental Health Care v Biluan, February 2013, Employment Appeal Tribunal.
In selecting employees for redundancy, the employer carried out a competency assessment which failed to take into account the opinion of managers who had worked with the relevant employees. Managers found the results ‘surprising’ and considered they had led to the selection and dismissal of some “very good workers”. The employer was held liable for unfair dismissal.
This case is on unfair dismissal rather than the Equality Act (and on dismissal rather than recruitment), but illustrates how unreliable competency assessments can be if one does not look at actual workplace performance, even where no disability is involved.
Work history: Caveats
Looking at workplace skills in this way can be useful. However some care may be needed – it may well be valuable to discuss it with the candidate. What may seem to the employer to be a ‘similar’ situation, from which conclusions for the new post may be drawn, may be quite different for the person who stammers.
Example: If a person has had problems with particular large meetings, that does not necessarily mean he will have problems with large meetings generally. The determining factor may not be the size of the meeting but such things as who are the other people there, how familiar is he with the subject matter, and what is his role. (One person I know finds it easier when he is the leader.)
Work history: Appraisals
In the HM Land Registry case, the Employment Tribunal said that just looking at appraisals (which the employer would routinely do anyway) was not sufficient, as appraisal forms were written to a script. Whether or not just looking at appraisals is sufficient will presumably be a question of fact in the particular case. However, in many cases there is probably more to be learned from talking to managers and possibly colleagues about how the candidate is able to communicate in workplace situations.
Again in the HM Land Registry case, the Employment Appeal Tribunal said that the employer, by just looking at past appraisals in the normal way, had complied with a speech and language therapist’s (SLT) recommendation to look at history of specific work skills required.
This raises a point to bear in mind when writing an SLT report. If the SLT writing a report wants to say that the employer should go beyond standard appraisals and, for example, specifically ask managers about oral skills in different aspects of his work, s/he may want to say so expressly in the report. (HM Land Registry v Wakefield>My comments: Lessons for SLT reports?)
There may be evidence from a person’s previous work role(s) of their oral communication skills in the workplace.
Example: A job applicant has a successful track record in a past sales role. An employer may find it difficult to objectively justify turning the person down for a sales job because of communication difficulties in the interview or recruitment process.
Specific skills test
I think a specific skills test can be a worthwhile tool to assess oral skills. However, there are some caveats, as discussed under the next heading.
In HM Land Registry v Wakefield the Employment Tribunal made some recommendations, though these were subsequently revoked on technical grounds (that they did not specify a ‘by when’ date). One recommendation was that if the job being applied for required specific oral communication skills, the claimant should be:
– told to what aspects of the job the requirement relates;
– told whether any, and if so what, adjustments might be considered to assist him perform those aspects of the job; and
– any testing of oral skills should be specifically with reference to the requirements of the job and done as a separate skills test rather than using the interview as a test of his general oral skills.
In the circumstances of that Wakefield case, there could perhaps have been a role play of a specialist working group, as would happen in the job.
Specific skills test: Caveats
Firstly, adequate preparation time should be allowed, as one would normally have in the job. It may be appropriate to allow extra time.
Also there are issues which it may be appropriate to be bear in mind in evaluating any results:
- it is an artificial situation;
- there may be greater stammering effects because the person knows they are being tested;
- it is perhaps initially a relatively unfamiliar situation for the individual, and speech may become easier in the job as the person becomes used to it:
- the others involved will doubtless be strangers, which will often not be the case in the job;
- possibly lack of status as the person is not yet appointed (thinking of a person who tells me he stammers less where he is the ‘leader’).
Work trial / probationary period
- It is likely to show better how the applicant performs in the job. It gives a longer period to settle into the role than a one-off oral skills test, and is thus more realistic.
- It allows time for reasonable adjustments to be tailored to the particular job, avoiding problems discussed below under Reasonable adjustments in job itself.
- An applicant who does not have a work history of the particular skills (or where the employer is not yet convinced by the history) is given an opportunity to demonstrate them.
Reasonable adjustments in job itself
An assessment of oral skills should take into account any reasonable adjustments that should be made in the job itself (as suggested by para 16.55 of the Employment Code below). Some adjustments in the job are discussed on Examples of reasonable adjustments: In the job. Just a few examples of possible adjustments are:
- allowing more time.
- if there is a group discussion exercise, perhaps because the job involves significant time in meetings, it could be facilitated by a chair who can bring in participants by turn to make their contribution and to take and respond to questions from other participants. The chair could allow the person who stammers more time than other candidates. This would avoid the need for the person who stammers to interject and control discussion. It could reflect the fact that the selection process is likely to be more stressful than the normal job situation, and also that in the actual job reasonable adjustments in meetings may well be appropriate. However, what is appropriate will doubtless depend on the particular job: on the facts this type of adjustment was not permitted in Lowe v Cabinet Office.
- options to reduce the need to speak, e.g. using alternative ways to get the main information over, followed by oral discussion if required. (See further Examples of reasonable adjustments: In the job>Presentations).
- there are many more possible adjustments on Examples of reasonable adjustments: In the job, for example adjustments in meetings.
It may well be difficult to know in advance precisely what adjustments will be most effective in the job (an argument for using a more extended trial where this is possible). However, any assessment should, so far as possible, use reasonable adjustments which ought to be made in the job. In any evaluation of performance, it may also be appropriate to take into account the possibility of further reasonable adjustments being developed in the light of practical experience.
“Modifying procedures for testing or assessment” is expressly mentioned in the Employment Code para 6.33 as an example of a possible reasonable adjustment.
“Allowing a disabled person extra time to complete the test” and “allowing a disabled applicant to take an oral test in writing” are two examples specifically given in Employment Code para 16.54.
Para 16.55 says the extent to which such adjustments would be reasonable “may depend on … how closely the test is related to the job in question and what adjustments the employer would be reasonably required to make if the applicant were given the job.”
Whilst other types of claim under the Equality Act 2010 may also apply, the most important for assessment of oral skills are ‘discrimination arising from disability’ under s.15 and the reasonable adjustment duty. ‘Indirect discrimination’ can also apply but is unlikely to add anything.
In summary, this means an assessment which disadvantages a disabled person potentially gives rise to two key legal issues (though tribunals may see the issues as not very different from each other):
- whether the assessment satisfies the ‘objective justification’ test under s.15; and
- so far as there is a provision, criterion or practice which is being applied in an assessment, whether it is reasonable for the employer to have to adjust this.
To expand very briefly on those issues:
‘Discrimination arising from disability’ and objective justification
‘Discrimination arising from disability’ under s.15 EqA is where the employer treats a disabled person unfavourably because of something arising in consequence of the person’s disability. So if someone who stammers is turned down for a job (or otherwise treated unfavourably) because of their oral skills or their performance in an assessment, and the skills or their performance is a consequence of the stammer, it can be ‘discrimination arising from disability’.
Provided it is not direct discrimination, the employer has a defence if it can show ‘objective justification’. This involves showing a legitimate aim and (most importantly) that the employer’s action is ‘proportionate’, bearing in mind both the discriminatory effect on the individual and the employer’s needs. The employment tribunal conducts a balancing exercise to decide this. The employer also has a defence if it could not reasonably have been expected to know the person had the disability.
Reasonable adjustment duty
There may be a ‘provision, criterion or practice’ applied by the employer, especially where there is a formal assessment. If it puts a disabled person at a substantial (ie more than minor or trivial) disadvantage in comparison with non-disabled people, the employer is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage. More: Reasonable adjustment duty.
“Modifying procedures for testing or assessment” is expressly mentioned in the Employment Code para 6.33 as an example of a possible reasonable adjustment.
Direct discrimination is likely to be unusual in the context but may sometimes apply, for example if ‘fluency’ (as in lack of stammering) is an assessment criterion. More: Direct discrimination.