Employers who have signed up to ‘Disability Confident’ commit to offer disabled people an interview if they meet the minimum criteria for the job vacancy, subject to some exceptions. The scheme is not legally binding.
‘Two Ticks’ and the Guaranteed Interview scheme have been replaced by “Disability Confident”.
Employers who have signed up to “Disability Confident” commit to encouraging applications by offering an interview to an applicant who declares he or she has a disability, if the person meets the minimum criteria for the job as defined by the employer (for example sometimes shown as desirable skills). This commitment applies even to employers signed up to level 1 of Disability Confident, the lowest level.
However the employer is allowed to make exceptions in some circumstances. The guidance for level 1, Level 1: Disability Confident Committed (gov.uk) says:
It is important to note that there may be occasions where it is not practicable or appropriate to interview all disabled people that meet the minimum criteria for the job. For example, in certain recruitment situations such as high number of applications, seasonal and high-peak times, the employer may wish to limit the overall numbers of interviews offered to both disabled people and non-disabled people.
In these circumstances the employer could select the disabled candidates who best meet the minimum criteria for the job rather than all of those that meet the minimum criteria, as they would do for non-disabled applicants.
‘Disability Confident’ more generally
The details are of this scheme are at www.gov.uk/guidance/disability-confident-how-to-sign-up-to-the-employer-scheme#how-to-become-disability-confident There are 3 levels of commitment:
Level 1: Disability Confident committed – The employer agrees to give five commitments: inclusive and accessible recruitment, communicating vacancies, offering an interview to disabled people, providing reasonable adjustments, and supporting existing employees. It also agrees to carry out at least one ‘activity’, such as offering disabled people work experience or work trials.
Level 2: Disability Confident employer – Once an employer has signed up for level 1, it can progress to level 2 by self-assessing its organisation around two themes: getting the right people for your business, and keeping and developing your people. Theme 1 includes guaranteed interviews as described above.
Level 3: Disability Confident leader – To achieve this the employer needs to have its self-assessment validated by someone outside of its business (not including DWP employees in jobcentres), and show what it has done as a Disability Confident Leader. Guidance on what external people may validate the employer depends on its size, but examples of groups or organisations who might validate include existing Disability Confident leaders, disabled employers, or disability organisations.
Accordingly only at level 3 is there any external validation, and even then there is no check by an official body.
There is a list of employers who have signed up to Disability Confident (gov.uk), including at what level.
Do I qualify for a guaranteed interview?
The Disability Confident scheme uses the Equality Act definition of ‘disability’. Accordingly if an employer offers guaranteed interviews under the scheme, it should be perfectly legitimate for a person who stammers to request one (if they so choose) if they take the view their stammer has a more than minor or trivial effect as regards normal day-to-day activities (for example phone calls), so as to fall within the Equality Act definition.
What if an employer fails to meet the commitments?
The Disability Confident scheme is not legally enforceable. You cannot make a tribunal claim just because an employer has failed to meet the scheme commitments.
Of course there may also be a breach of legal duties, such as those under the Equality Act (and see below EqA claim if pick and choose between disabled people?).
Also failure to offer a guaranteed interview when the employer has committed to do so may make it easier for a tribunal to find that the employer has acted unreasonably or without justification:
British Telecommunications v Meier, Northern Ireland Court of Appeal, 2019
BT had committed to offer a guaranteed interview to any disabled applicant meeting the minimum requirements for the job. 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, and the employer refused to interview him when he failed it. The court held this was a failure to make reasonable adjustments.
That decision was not necessarily based on the guaranteed interview commitment. However the courts do seem to have taken that commitment into account in finding that the employer should have interviewed him despite him failing the test.
EqA claim if pick and choose between disabled people?
An employer is not legally required to meet the commitments of the Disability Confident scheme. However, it is arguable that it would be unlawful direct discrimination contrary to the Equality Act if the employer offers disabled people a guaranteed interview for a particular post, but refuses to give an interview to a particular disabled person who meets the minimum criteria for the job.
An employer states that disabled people who meet the minimum criteria for a job are guaranteed an interview. However it refuses an interview to a person with a stammer who meets the minimum criteria (and who has a disability within the Equality Act), perhaps because it does not see a stammer as a ‘proper’ disability. However, it gives a guaranteed interview to someone in a wheelchair or a blind person, or would give such a person a guaranteed interview if they applied for the job. This may be unlawful as direct discrimination.
It is not direct discrimination to treat disabled people generally more favourably than non-disabled. However, it may be direct discrimination to treat some disabled people more favourably than other disabled people. Hence the possible claim in this situation. For more: Treating disabled people more favourably.
What if the employer selects the disabled candidates who best meet the minimum criteria for the job, as permitted by the Disability Confident guidelines in some circumstances? Here the employer would argue that there is a material difference between the candidates which it does and does not select, so that there is no direct discrimination: see Direct discrimination>Technical definition. However if the material difference is not genuine, there might again be a direct discrimination claim.
Why is the guaranteed interview scheme – giving disabled people an advantage over non-disabled – lawful? Presumably because treating disabled people generally more favourably than non-disabled is not direct discrimination, because of s13(3) EqA: see Treating disabled people more favourably. If the guaranteed interview scheme were direct discrimination, I think s.158 and s.159 (positive action) would not justify it. S.158 does not apply to treating a person more favourably in connection with recruitment or promotion (s.158(4)(a)), as the guaranteed interview scheme seems to do. S.159 is only a limited tie-break provision where candidates are equally qualified.
- Disability Confident employer scheme and guidance (gov.uk), and Disability Confident guidance for levels 1, 2 and 3 (gov.uk).
- Ticked Off – Going through the Motions of Replacing Two Ticks (wheresthebenefit.blogspot.com), November 2016. The Disability Confident criteria have changed since this was written.