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Oral assessments in recruitment

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Last updated 10th April 2021 (part update 31st July 2021).

It is likely to be justified for an employer to assess oral skills genuinely required for the job if it is done in a way that minimises discriminatory effects. This page discusses assessments and assessment centres. It considers too looking at the person’s work history, and work trials. Also it argues that assessing oral skills through performance in a job interview can be misleading (and so discriminatory). There are separate pages on job interviews and presentations in recruitment.

Table of page contents

Summary

  • Roughly speaking, the Equality Act requires that any discriminatory effect of oral assessments be kept as small as reasonably possible, consistent with the employer being able to assess skills that are important for the job. See below Summary of legal background and Oral assessments: Legal background.
  • In Assessments and assessment centres (below) I discuss what I think this means in practice, with examples. In particular, if the individual who stammers would otherwise be put at a disadvantage:
    • Assessments should be limited to skills which are sufficiently important for the job: below Is the assessment limited to skills important for the job?
      • For example presentation skills should not be assessed if they are not important in this job, after reasonable adjustments.
    • Adjustments will very often be reasonable if they still let the employer assess the skills important for the job: below Adjustments which do not prejudice the assessment of the relevant skills.
      • For example if oral presentation skills are not being assessed (or it is not justified to assess them), a written presentation may well be reasonable instead of an oral one, if the individual would like this.
    • Since stammering is often situation-dependent, the situation in which the skills are tested should match that in the actual workplace; below Is the situation in which the skills are tested equivalent to the actual workplace situation?
      • For example don’t use a group interview to test skills in a meeting. To assess meeting (or presentation) skills, use a similar format, similar number of people, and similar subject matter to that in the workplace. Don’t use a mock client pitch if presentations in the job are on more technical subjects.
      • Also candidates should not be disadvantaged through having difficulty intervening in the conversation, if this would not be an important ability in the workplace (after reasonable adjustments, eg the chair bringing the person in).
    • The assessment criteria used by the employer need to be justified, given the needs of the job. For example, this almost always means that fluency should not be assessed. Below Are criteria for assessment justified?
    • It is likely to be reasonable to make adjustments in an assessment that would be reasonable in the actual workplace; below Allowing for reasonable adjustments in the workplace. These might include for example extra time, having a chair who ensures the person has a chance to contribute in a meeting, and oral material being supplemented (or replaced?) by written material.
    • It may be appropriate to make further allowances to compensate for ways in which the assessment is unreliable.
      • For example even if an assessment seeks to match the workplace situation, effects of the stammer may be greater – sometimes much greater – in an assessment than in the workplace (eg because the person knows they are being assessed and that it is not real). Possible steps to counter this include taking work history into account, and perhaps a work trial. Below Allowing for other inaccuracies in the assessment.
  • Remote assessments (by Zoom etc) are a particular issue during the Covid-19 pandemic. The same principles should apply, so in deciding whether an employer is justified in assessing remote-working skills, it is relevant how important face-to-face versus remote working is likely to be when the pandemic no longer necessitates home-working.
  • It makes sense for a job applicant to discuss adjustments with the employer in advance, perhaps after receiving the invitation to the interview/assessment. The discussion might include for example how the assessment will run in practice, what exactly is being assessed and why, how the assessment situation compares with the workplace situation and what adjustments might be reasonable in the job. Below Discussing adjustments with the employer.
  • Different jobs require different types of communication skills. I suggest employers should drill down and assess only what is really required. Also bear in mind that a person who stammers may have excellent communication skills, even if they are stammering. Below What is being assessed? Should it be assessed?
  • An job interview is not an appropriate way to assess oral workplace skills in the context of stammering, despite a case which seemed to think it might be. Effects of a stammer are likely to be greater in an interview than in the actual job: below Oral interview not appropriate way to assess oral skills.
  • As well as specific skills tests (below), in other words the type of assessment discussed above, other ways of assessing oral skills include:
    • Looking at work history (below), which may be particularly useful where the person is already employed and is applying for promotion, and
    • Work trial/ probationary period (below).
      Either work history or a work trial may be useful given that results of skills assessments for someone who stammers may not show their actual ability to perform in the workplace.
  • I summarise below some relevant cases, including on stammering and communication.

For job interviews, see my Examples of reasonable adjustments: Recruitment, including video/Zoom interviews. Presentations are discussed below, but more fully on Presentations in recruitment.

Possible adjustments to oral assessments are also discussed in the ‘Education’ section of this website: Oral assessments in context of exams.

The most important types of Equality Act claim as regards oral assessments in recruitment are ‘discrimination arising from disability’ and the reasonable adjustment duty.

In summary, this means that an oral assessment which disadvantages a disabled person potentially gives rise to two key legal issues, though tribunals may often see the issues as not very different from each other:

  • whether rejecting the person for the job based on or influenced by the results of the assessment was a proportionate means of achieving a legitimate aim – the ‘objective justification’ test, and
  • whether there were reasonable steps the employer could have taken to avoid the disadvantage caused to the disabled person by the employer’s assessment practices and criteria – the reasonable adjustment duty.

Roughly speaking, the effect of these provisions seems to be: any discriminatory effect should be as small as reasonably possible, consistent with the employer being able to assess skills that are sufficiently important for the job. Most of this page is just considering what conclusions can be drawn from that in practice.

For more, see below Oral assessments: Legal background and Some relevant cases.

Assessments and assessment centres

What points are important in deciding whether an assessment is lawful and whether adjustments should be made to it? There is only limited case law (below) specifically on this. However based on the Equality Act provisions and general case law – in particular keeping any discriminatory effect as small as reasonably possible consistent with the employer being able to assess skills that are sufficiently important for the job – I suggest the following six points.

The assessment may or may not be part of an assessment centre. At assessment centres, each individual exercise would need to be considered. I’m looking here at specific assessments such as group exercises, rather than job interviews (below). I consider remote assessments (Zoom etc) in a separate section below but the basic same principles should apply.

1. Is the assessment limited to skills important for the job?

If skills which an assessment seeks to measure are not important for the job, then probably either the assessment should be changed or reasonable adjustments should be made. A disabled person should not be put at a disadvantage because they lack skills which are not important enough for the job to justify the discriminatory effect. See below What is being assessed? Should it be assessed?

Example: An employer asks job applicants to give a presentation. If (after reasonable adjustments) presentation skills are important enough in the job, the employer is likely to be justified in assessing such skills (though probably not eg ‘fluency’, see below). However various adjustments may still be reasonable, such as extra time and other adjustments that would be reasonable in the job. See further Presentations in recruitment.

If giving oral presentations is not important enough in the job to justify assessing presentation skills, and the employer is only justified in assessing the content of the presentation, more substantial adjustments are likely to be reasonable. This could include giving the presentation in writing: below Adjustments which do not prejudice the assessment of the relevant skills.

Example: At an assessment centre to select trainee solicitors (for a two-year training contract), applicants are expected to make a mock pitch to prospective clients for work. Trainee solicitors at the firm are not involved in pitches to prospective clients, or only exceptionally.

The firm may well have difficulty showing that the assessment is proportionate and reasonable. Even if it tries to argue it is looking to the longer term once trainees have qualified, that may be too remote to win out when balancing any benefit to the firm against the detriment to a disabled applicant. Also during the two-year training a person who stammers (and anyone else) may grow into the broader role that will be required after qualification.

If it is a pitch as part of a group, that may raise further difficulties for someone who stammers (cf the group negotiation example below) and make it that much more difficult for the employer to justify.

Note: Also this seems an unreliable way to test presentation skills generally, because the person who stammers may do much better presenting on something they know about than in a “pitch” type of presentation they may be unfamiliar with.

Lowe v Cabinet Office, Employment Tribunal, 2011
A claim for reasonable adjustments at an assessment centre for the Civil Service Fast Stream failed. The claimant had Asperger’s Syndrome. Some adjustments she sought would have prejudiced the assessment of ‘building productive relationships’ and ‘communicating with impact’. The tribunal said there was compelling evidence that these competencies were, in practice, required on a daily basis in the workplace. The tribunal therefore rejected her claim on these adjustments. The employer was willing to adjust how the competencies were assessed.

2. Adjustments which do not prejudice the assessment of the relevant skills

Adjustments will very often be reasonable if they still allow the employer to assess the skills important to the job (as was accepted in Lowe v Cabinet Office). That includes where, without adjustments, results of the assessment would depend partly on skills/abilities which are not important for the job, and this would disadvantage the disabled person.

Example: An employer asks job applicants to give a presentation. If (after reasonable adjustments) presentation skills are not important enough in the job to justify assessing them, then only the content should be assessed. This could be assessed either orally or in writing. If the person who stammers wants, she could be allowed to giving the presentation in writing, perhaps with oral questions/discussion afterwards (with appropriate adjustments). Or she could be allowed whatever longer time is necessary to allow her to say the same amount as other candidates, plus any other appropriate adjustments. See further Presentations in recruitment.

A discrimination claim may succeed even if the adjustment makes an assessment somewhat more difficult, or makes it somewhat harder to compare the claimant with other candidates:

Government Legal Service v Brookes, Employment Appeal Tribunal (EAT), 2017
A “fiendishly competitive” recruitment process included a test of a fundamental competency, namely the ability to take effective decisions. It was a multiple choice test, but a job applicant on the austistic spectrum said this format put her at a disadvantage. She asked the employer to allow her to give short narrative answers instead. The employer refused.

The EAT upheld her claim for disability discrimination. It said the employment tribunal had balanced the factors on the employer’s side of the balance (for example it would not be ideal to have to run the two different methods of assessment alongside each other, and inevitably there would be difficulties comparing candidates’ answers) against factors on the claimant’s side of the balance. The tribunal was entitled to decide that the factors on the claimant’s side outweighed those on the employer’s, and so to find in favour of the claimant.

See also British Telecommunications v Meier, 2019, an NI Court of Appeal case where again the disability discrimination claim succeeded.

3. Is the situation in which the skills are tested equivalent to the actual workplace situation?

Put another way, does the assessment have differences from the actual workplace situation (after adjustments) which make it more difficult for the person who stammers?

This is because aspects of an assessment which disadvantage a disabled person should be justified by being needed to assess what is required in the actual workplace. Effects of a person’s stammer may be quite different in different situations – for example in a larger group of people, or if there are several people trying to get a word in. (This is partly why job interviews (below) are not a reliable way to assess workplace communication skills). The aim – so far as justifiable – is to assess what the person’s skills and abilities will be in the actual workplace.

Example: An employer uses a group interview, with multiple job candidates, to assess how candidates perform in a group setting. The employer asks questions similar to what they might ask in a normal interview.

Firstly, the person who stammers may find it more difficult speaking in a larger group. Therefore, compared with a standard individual interview, this format may make it more difficult for someone who stammers to communicate what they need to in response to interview questions, to get over why they may be the best person for the job.

Secondly, this format is unlikely to be a reliable way to assess how a person who stammers would perform in a real workplace meeting. For example, effects of a stammer when trying to answer personal interview questions may be significantly greater than when dealing with a more objective workplace matter. See also below Interview: Not an appropriate way to assess oral skills. An employer may therefore have difficulty justifying a decision based on using this method to assess someone who stammers. A possible alternative would be a group discussion exercise (below) constructed to be like what would happen in the workplace, and discussing the sort of topic that would be discussed at work.

If the group interview goes ahead, at the very least adjustments which would be reasonable in workplace meetings (as discussed at the group exercise link) are likely to be reasonable, and perhaps greater adjustments since the exercise does not reflect the actual workplace situation (below Allowing for other inaccuracies in the assessment).

Further adjustments may be reasonable as at a normal individual interview (Examples of reasonable adjustments: Recruitment), for example to reflect the fact that the person who stammers may say less (even if given the opportunity to speak) because of their stammer: see on that page Oral interview: Limited responses. The risk that the person will say less is likely to be still greater in a group situation than in an individual interview.

Example: An assessment centre includes a simulated negotiation with four people trying to put arguments for each side. Playing an active role in negotiations is an important part of the job. However the professionals arguing for a particular side are likely to be far fewer, and/or to have more clearly defined roles. For example in the workplace one may be the lead with others being relied on for specialist knowledge in particular areas. In this assessment a person who stammers may struggle to make an impact alongside three other job applicants all seeking to impress. It may well not be a fair assessment of their ability to conduct a negotiation as it would happen in the actual job.

See also ‘group discussion’ example below on chair ensuring the person has a chance to contribute.

Example: The job requires explaining things orally to one or two people. The employer uses a presentation to a larger group to judge this. If the individual’s stammer is likely to have greater effects with the larger group than with one or two people, it is likely to be reasonable to limit the audience to a smaller group as in the job situation.
See more generally Presentations in recruitment.

Example: Effects of the person’s stammer in a presentation or other task may be reduced if the person has adequate time to prepare. If a longer preparation time than the employer is allowing for the assessment would generally be available in the workplace (after reasonable adjustments), it may well be reasonable to similarly allow longer preparation before the assessment.

Example: An employer assumes from an applicant’s communication at the job interview that he will have difficulty communicating in various workplace situations. This is not a fair assumption to make.
See below Interview: Not an appropriate way to assess oral skills.

See also below Technical note: Employers’ knowledge and evidence for tribunal about difference in situation, on telling the employer about how the situations are different from the individual’s point of view, and how it may be a good idea to back this up with expert evidence if bringing a tribunal claim.

4. Are criteria for assessment justified?

Criteria assessed should be limited to what is really required for the job (after any reasonable adjustments). See below What is being assessed? Should it be assessed?

  • Depending on the job, employers may need to ensure candidates are marked on what they say rather than how they say it. Indeed whether or not the employer is justified in assessing oral communication skills, it is important that candidates are given credit for what they say. It is common to associate fluency with competence and confidence. Unconscious bias may lead assessors to mark down the content of someone who stammers, and assessors should combat any tendency towards this.
  • So far as some assessment of oral communication skills is justified, I suggest that limiting assessment criteria to what matters in the job includes employers drilling down to decide what particular skills in communication are important enough to assess, and assessing those specifically: see below Communication skills. The wider or vaguer the criteria, the more likely assessors are to include effects of the stammer where the job requirements do not justify them doing so.
  • Normally it will be very difficult to justify a criterion such as “fluency”. Nearly all jobs can be done well with some dysfluencies from stammering.
  • If what is important for the job is the content of an presentation, it is not likely to be justified to assess oral skills in it.

It may well be a reasonable adjustment for the assessors to be aware that the candidate has a stammer, and of its effects (so far as the candidate wants them to be told) – so they can take this into account and are less likely to misinterpret things which are actually caused by the stammer, eg thinking the candidate is unsure of what they are saying. Indeed it may be reasonable (depending on the job requirements etc) for assessors to disregard effects of the stammer:

Example: It may be reasonable/proportionate for assessors to disregard fillers (words etc inserted by a person who stammers when they cannot say the next word) and other hidden effects of the stammer. At least it may be reasonable for assessors to take into account that these effects are likely to be effects of the stammer (its effects will normally be greater in the recruitment situation than in the job) and not indicative of confusion or lack of expertise etc.

Lowe v Cabinet Office, Employment Tribunal, 2011
One adjustment agreed by the employer was that the assessors at an assessment centre should be aware that the claimant had Asperger’s syndrome and struggled to interpret facial expressions and body language and often found it hard to understand non-literal expressions.

5. Allowing for reasonable adjustments in the workplace

Broadly, it is likely to be reasonable to make adjustments that would be reasonable in the actual workplace situation. As to why, see below Why allow for reasonable adjustments in job itself.

Example: Extra time will often be a reasonable adjustment. This was allowed at an assessment centre in Lowe v Cabinet Office.

Example: Candidates are assessed in a group discussion exercise because the job involves a significant amount of discussion in meetings. To be similar to the work situation, the exercise takes the kind of topic that would be discussed in a work meeting. Adjustments in the assessment may well be reasonable depending on what would be reasonable in the workplace: see Examples of reasonable adjustments: In the job>Meetings, video conferences and conference calls.

For example if the person who stammers is likely to have difficulty interjecting in the meeting, then if it could reasonably happen in the workplace, the chair might discuss with the person in advance how to best let them contribute when they want to. (If there isn’t a chair in the assessment exercise but there normally would be in the workplace, maybe there should be a chair in the exercise, or the employer might consider how else to adapt the assessment to what is actually needed in the job.)

It may also be reasonable, for example, not to penalise the person for making a point later than it should have been made to fit the flow of discussion, as this could well be due to the stammer.

There is an equivalent example on a remote (video) group discussion exercise, below.

Example: An assessment centre includes an exercise of giving advice to a client, which is an important part of the job. The exercise is already one-to-one, or otherwise designed to be as it would likely happen in the actual job. Adjustments by way of doing part of it in writing may well be reasonable, to reflect the fact that in the workplace the adviser might well follow up in an email with further detail, or might do initial written advice to the client which they then discuss in a meeting.

There are many more possible adjustments on Examples of reasonable adjustments: In the job, for example adjustments in meetings.

It is sometimes difficult to know in advance precisely what adjustments will be most effective in the job (an argument for using a more extended work trial if possible). However, any assessment should, so far as possible, use reasonable adjustments which are likely to be reasonable in the workplace. Also evaluating performance at the assessment, it may be appropriate to take into account the possibility of further or better reasonable adjustments being developed in the light of experience.

6. Allowing for other inaccuracies in the assessment

I outline in Specific skills tests: Caveats below some caveats on the effectiveness of assessments as regards people who stammer.

One point is that even if an assessment seeks to match the workplace situation, effects of the stammer may well be greater – sometimes much greater – in an assessment than in the workplace – because the person knows they are being assessed, because of the presence of the people making the assessment, because other people involved are strangers (which may be less likely in the job), and/or because others involved are either actors or candidates “play-acting” roles. How far employers should reasonably take such factors into account in the particular circumstances will ultimately be a matter for the employment tribunals.

Example: An individual’s stammer has much greater effects in an assessment than in the actual job, even though the assessment seeks to replicate the workplace situation. The employer may well need to take this into account. Possible steps including looking at the person’s work history, or a work trial, as discussed below.

Also it may not be practicable for the assessment to comply with some of the principles above. For example, in a group meeting exercise it may not be practicable (or the employer may feel it is not practicable) to have a chair who could ensure the person who stammers is able to participate, even though this would be reasonable in the workplace. Or it may not be practicable to match the assessment to the actual workplace situation. Further adjustments might be reasonable to compensate here, including adjustments which would not be reasonable in the actual workplace. In any event it will ultimately be for the employer to justify whatever use it makes of the assessment results, despite their unreliability.

Possible steps which may be reasonable to counter such effects include:

  • Allowing further adjustments to the assessment which would not be reasonable in the job, but which could help to compensate for the assessment not properly measuring how performance will be in the actual workplace.
  • Looking at previous work history (below), paid or voluntary (including allowing the candidate to provide evidence of this if it was with a different employer), and/or paying greater attention to work history than the employer normally would, alongside any results of the assessment. This could be particularly important where an existing employee is applying for promotion: in Mental Health Care v Biluan (below) the EAT criticised an employer who relied on competency assessments (in a redundancy situation) without talking to managers.
  • Perhaps if assessments show the candidate is not too far off the standard required, allowing a work trial (below) to check if their skills are up to the mark.

Remote assessments (Zoom etc)

Remote/virtual assessments are now common due to the Covid-19 pandemic They are likely to be by video. People who stammer will often find video calls more difficult that face-to-face (though easier than phone calls). I discuss remote job interviews at Examples of reasonable adjustments: Recruitment>Telephone or video interviews.

One question is whether the employer is justified in assessing the relevant skills as they will be in a ‘remote-working’ situation, ie by video. Working remotely may become more common after the Covid-19 pandemic. But still there are many jobs where the workplace situation is likely to be largely face-to-face, at least after a few months when Covid-19 is less of a threat. Whether it is proportionate/reasonable to assess and put weight on someone’s remote-working abilities is likely to depend to a large extent on how important those abilities in a remote-working context are expected to be in the particular job (below What is being assessed? Should it be assessed?).

If justified to assess remote-working skills

Even if remote-working in the job is likely to be important enough that the employer is justified in assessing remote-working skills, the factors set out in Assessments and assessment centres (above) very much still apply. These include for example designing the assessment to be equivalent to the actual workplace situation (above), and allowing adjustments that will be reasonable in the workplace (above). I give examples of workplace adjustments for video meetings at Examples of reasonable adjustments: In the job>Meetings, video conferences and conference calls.

Example: Candidates are assessed in a video group discussion exercise because the job is expected to involve significant time discussing in online meetings. To be similar to the work situation, the exercise takes the kind of topic that would be discussed in a work meeting. Adjustments in the assessment may well be reasonable depending on what adjustments would be reasonable in the workplace (see examples in previous link above).

For example, if the person who stammers is likely to have difficulty interjecting in the meeting (she may find this more difficult than in face-to-face meetings as people cannot she is trying to speak), then if it would be reasonable in the workplace, the chair might discuss with the person in advance how to best let them contribute when they want to. For example, she could use the technology to “raise her hand”. (If there isn’t a chair in the assessment exercise but there normally would be in the workplace, maybe there should be a chair in the exercise, or the employer might consider how else to adapt the assessment to what is actually needed in the job.)

It may be reasonable for the person who stammers to ask questions or make comments using chat functions, and to be credited as if they had said it. The chair might pick out any questions to be put to the group.

It may also be reasonable, for example, not to penalise the person for making a point later than it should have been made to fit the flow of discussion, as this could well be due to the stammer.

Compare face-to-face group exercise, above.

Example: The job requires explaining things orally to one or two people, and this is often likely to happen remotely after Covid. The employer uses an online presentation to a larger group to judge this. If the individual’s stammer is likely to have greater effects with the larger group than with one or two people, it is likely to be reasonable to limit the online audience to a smaller group as in the job situation.

Other adjustments may reasonable such as allowing the person who stammers to supplement the explantation/presentation in writing before or afterwards, if this would be reasonable in the workplace: see example above.

See more generally Presentations in recruitment.

If not justified to assess remote-working skills

If the workplace situation is likely to be largely face-to-face, at least soon, the employer may only be justified in assessing face-to-face skills. However this may not be possible directly during the Covid pandemic.

Given the limitations of what is possible due to Covid, it may be proportionate/reasonable to assess the skills remotely, perhaps at least with the adjustments that would be reasonable if an actual work meeting were conducted remotely (as in If justified to assess remote-working skills (above)), and maybe with further adjustments (Allowing for other inaccuracies in the assessment (above)). An employer might argue that solutions specific to the technology, such as making written comments, should not be allowed because they would not be possible in a face-to-face meeting. A person who stammers might be able to counter that adjustments which would not be possible in the job are reasonable to help compensate for extra difficulties which the individual has with the remote format of the meeting, which would not be there face-to-face in the actual job. If written comments were not allowed, it might be reasonable at least for there to be arrangements with a chair/facilitator to give the person the opportunity to contribute orally. An employment tribunal would need to consider what was proportionate or reasonable in the circumstances.

Also see more generally Allowing for other inaccuracies in the assessment (above), since the remote assessment does not reflect the workplace situation. For example, as well as arguing for more adjustments than normal (see previous paragraph), the individual might be able to show a work history (below) of successfully contributing in face-to-face meetings.

Ultimately, if challenged in an employment tribunal, it would be for the employer to justify the assessment, including what weight they gave to it, in the light of the fact that it does not reflect the workplace situation.

Discussing adjustments with the employer

The employer normally has a defence to an Equality Act claim if it does not have actual or constructive knowledge of the disability, and (in the case of the reasonable adjustment duty) of the disadvantage at which the disabled person is placed by the employer’s arrangements: below Legal background>Knowledge.

Partly because of that, but more importantly to try and get adjustments made in practice, it makes sense to discuss adjustments with the employer in advance: see Recruitment: Should I tell the employer I stammer?

To work out properly what disadvantages will be caused by the assessment process in relation to the stammer and what adjustments might be reasonable to avoid the disadvantages, it may be necessary for the employer and individual to discuss such things as:

If the employer is unwilling to disclose information about such things in advance, so that the individual is unable to point out how they interact with his stammer, the employer might be treated as having constructive knowledge of things it would have found out had it been willing to engage in proper discussion.

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.

As discussed above, I suggest that important factors in deciding what assessments and criteria, and what adjustments to them, are reasonable and proportionate include:

  • limiting assessments and criteria to skills (including particular types of communication skill) that are important for the job, after any reasonable adjustments
  • assessing those skills in a situation as close as possible to what will happen in the actual workplace, and
  • reflecting in the assessment any adjustments that are likely to be reasonable in the actual workplace.

What is being assessed? Should it be assessed?

It is important to identify what skills are being assessed, and consider how far the employer is justified in assessing them, given the discriminatory effects of the assessment.

Any oral skills being assessed should be actually required in the job. Employers sometimes ‘overplay’ what is needed for a job – for an example of this see Presentations in recruitment>Is importance of presentation skills exaggerated? Reasonable adjustments in the job once the person is employed can also affect what skills and abilities are actually required: see the example and discussion at Presentations in recruitment>Justification: Could reasonable adjustments be made?

There will inevitably be grey areas in deciding it is proportionate or reasonable (see Legal background below) for the employer to assess a particular skill or ability, given the employer’s needs for the particular job. It may be a skill which the employer would prefer but is not one of the most important skills, or is likely to arise only occasionally. It might be possible to address any problems by reasonable adjustments (below) in the job itself. If not, a question under the proportionality (objective justification) test would be whether the importance of the skill in the job is such that it outweighs the discriminatory effect of turning the person down on this ground. Also if it is proportionate to assess the skill but it’s not one of the most important skills, it might be proportionate (and reasonable) to allocate only a small proportion of the score to that skill.

Two cases on communication skills which are however only employment tribunal cases and so not binding on tribunals:

Lowe v Cabinet Office, Employment Tribunal, 2011
The tribunal considered it reasonable, in relation to the Civil Service Fast Stream, to assess skills in ‘building productive relations’ and ‘communicating with impact’.

Y v Bradford Council, Employment Tribunal, 2006
The tribunal commented that a sensible employer would design the selection process to test whether applicants meet the personnel specification. “However, where it becomes clear that a disabled applicant will be disadvantaged by some aspect of that process, this should prompt the employer to track back from the process to the personnel specification and the job description on which it is based, to consider whether or not it would be reasonable to make adjustments to that job description, and hence the personnel specification and selection process, to accommodate the disabled applicant.” (This case involved a person who stammers doing a presentation exercise and interview in writing. The tribunal held there was a failure to make reasonable adjustments.)

Though not an authoritative decision, the tribunal in Y v Bradford seems to be right legally in saying that the person specification and job description are not definitive. It is a matter of evidence what the job really requires, after reasonable adjustments.

What communication skills?

Generally it is not fluency that should be assessed but rather communication skills so far as important for the job. It is perfectly possible for a person to have great communication skills while stammering: see Excellent communication skills including examples.

A job may be said to need ‘good’ or ‘excellent communication skills’, but those are vague terms:

Stamma/British Stammering Association suggests to employers:

“Before setting down ‘excellent communication skills’, consider your actual needs. Good communication is not the same as speech fluency. Good communication skills involve the ability to analyse and summarise, to interpret other people’s body language and words, to show empathy, to read situations accurately and moderate tone and messaging appropriately, the ability to listen actively and write well. Make sure you define the actual communication needs of a role and consider how you will assess these.”
Employers and HR Professionals (stamma.org)

If the employer is challenged, it potentially has to show that rejecting the person for the job was proportionate under the ‘objective justification’ test in s.15, and that adjustments to avoid any disadvantage to them were not reasonable. In both cases, restricting assessments to the particular skills actually required for the job is likely to be important.

What is being assessed: Effect on what adjustments are reasonable

What the employer is justifiably assessing is important in deciding what adjustments to the assessment should be allowed.

If oral skills are not being assessed, or the employer is not justified in doing so, then a much wider range of adjustments could be reasonable, including doing the assessment in writing. See Presentations in recruitment>Testing other skills (if presentation skills not important).

If testing the particular oral skills is justified, then having a written assessment instead of an oral one is not likely to be reasonable. However there is still the question of how the individual’s oral skills as they are likely to be in the workplace can effectively be tested, for example testing in a situation as close as possible to that in the workplace, and allowing adjustments which are likely to be reasonable in the job itself. See above Assessments and assessment centres. Also on work trials and looking at work history, below Methods of assessing oral skills.

Time taken to speak may of course be critical in certain jobs, such as an air traffic controller.

Interview: Not an appropriate way to assess oral skills

An oral interview is not normally a good way to assess oral skills. If a person’s stammer gives problems in the interview, an employer should not assume she will also have such problems in the workplace.

For many people interviews are unusually stressful situations. This will often exacerbate the effects of their stammer. More generally, effects of a stammer are often different in different situations, or with different people. The individual may well communicate more easily in the actual work situation than at the interview, even if the work situation might be seen as ‘more challenging’. A clear illustration of this:

Ohio firefighter case: Columbus v Liebhart, Ohio Court of Appeals, 1993 (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 firefighters.

The problem that a job interview is not appropriate to assess oral skills can arise in at least two situations:

  • most common, if the person who stammers is happy to have an oral interview, but the employer wrongly uses it to judge his likely workplace communication; or
  • where, as in HM Land Registry v Wakefield (discussed below), the candidate wants to be allowed to give written answers 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.

HM Land Registry v Wakefield, Employment Appeal Tribunal, 2008
The Employment Tribunal said “…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. What about when this decision was appealed to the EAT?

On appeal, the Employment Appeal Tribunal (EAT) in HM Land Registry v Wakefield did not really address that as a general statement. However the EAT 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.

The EAT’s comment misunderstands the nature of stammering. The British Stammering Association (BSA) stated in relation to the EAT decision in Wakefield:

“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

If this point arises in future cases, I suggest that it is important to bring appropriate evidence (eg a report by a speech and language therapist) of the unreliability of the interview in assessing oral skills as they will be in the workplace. The EAT’s view on “more confrontational” settings was based on the EAT’s view of the evidence available in that case: the EAT said “the evidence which is referred to cannot, in our judgment, justify the [Employment Tribunal’s] conclusion.”

Expert evidence should similarly be considered if the claimant is arguing that the situation in some other assessment is not equivalent to the workplace situation: see below Evidence in employment tribunal claim about difference in situation

For more, see HM Land Registry v Wakefield>My comments: Use of interview as oral test.

On group interviews, see also the group interview example above.

Methods of assessing oral skills

Given the problems with using the oral interview (above), how might workplace oral skills of a person who stammers be assessed? I deal below with:

A separate page deals particularly with presentations in recruitment.

Work history

In HM Land Registry v Wakefield, a case on an existing employee applying for promotion, a speech and language therapist’s report recommended looking at “his work history of specific oral skills required for the post.”

This is likely to be easier where the person is an existing employee applying for promotion. For new employees see below Work history: Job applicant new to the employer.

For an existing employee being considered for promotion, the employer could for example ask managers how his stammer actually affects him in relevant aspects of his work. See below on use of appraisals.

An EAT decision, Mental Health Care v Biluan, illustrates how unreliable competence assessments can be if one does not look at actual workplace performance, even where no disability is involved. This case was on unfair dismissal rather than the Equality Act (and on dismissal rather than recruitment), but the tribunal would have examined the employer’s competence assessment even more critically if the outcome was affected by a disability within the Equality Act, since Equality Act tests (under s.15 EqA and the reasonable adjustment duty) are more rigorous than for unfair dismissal:

Mental Health Care v Biluan, Employment Appeal Tribunal (EAT), 2013
The employer was selecting employees for redundancy. As part of this the employer carried out a competence 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. An additional contributory factor was that the group ‘scenario’ assessments, carried out without any facilitation, were likely unfairly to favour those employees who had an outgoing personality, and disadvantage those who were ‘retiring and thoughtful.’

Work history: Caveats

Looking at past workplace skills in this way can be valuable. However some care is needed. I suggest the employer should discuss with the candidate any conclusions the employer is proposing to draw from past performance. What may seem to the employer to be a ‘similar’ past situation may actually be quite different from the point of view of that individual’s stammer.

Example: If a person has problems with particular large meetings, that does not necessarily mean he has problems with large meetings generally. The determining factor may not be the size of the meeting but, for example, who are the other people there, how familiar is he with the subject matter, and what is his role. (One person told me he finds meetings easier when he is the leader.)

Work history: Is it enough to look at past appraisals?

This assumes the candidate is an existing employee applying for promotion. In summary, I suggest that an employer should not normally just look at past appraisals.

In the HM Land Registry case the Employment Tribunal said that just looking at past appraisals (which the employer routinely did anyway when someone applied for promotion) was not sufficient, because appraisal forms were written to a script. I suggest that in many cases there will be more to be learned from talking to managers (and possibly colleagues) about how the candidate is able to communicate in workplace situations, compared with only looking at appraisals.

Another point from 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 wants to recommend that the employer should go beyond standard appraisals and, for example, specifically ask managers about oral skills in different aspects of his work, I suggest the therapist should be specific about this in her report. See HM Land Registry v Wakefield>My comments: Lessons for SLT reports?

Work history: Job applicant new to the employer

There may be evidence from a person’s previous jobs or roles of his oral communication skills in the workplace, or in voluntary roles.

Example: A job applicant has a successful track record in a sales role at a previous employer. An employer may find it difficult to justify turning the person down for a sales job based on communication difficulties in the interview or recruitment process.

It might be a reasonable adjustment to give allow the job applicant to produce written evidence of work history, such as narrative about or testimonials from previous jobs or voluntary roles showing evidence of skills. See Examples of reasonable adjustments: Recruitment>Limited responses: Written evidence.

Work trial / probationary period

Advantages of a work trial / probationary period, if practicable, can include the following:

  • It is likely to show better than a specific skills test (below) 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 at the end of Allowing for reasonable adjustments in the workplace above.
  • A job applicant who does not have a work history of the particular skills (or where the employer is not yet convinced by the history or an assessment) is given an opportunity to demonstrate the skills.

Specific skills test

I think a specific skills test can be a worthwhile tool to assess oral skills. However, there are various caveats, as discussed below under Specific skills test: Caveats. I also discuss specific skills tests extensively above at Assessments and assessment centres, with examples.

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, with any adjustments that would be reasonable in the workplace.

Specific skills test: Caveats

Most importantly, any discriminatory effect of oral assessments should be kept small as reasonably possible, consistent with the employer being able to assess skills that are important for the job. I discuss this at some length under Assessments and assessment centres (above).

However I also see further issues with the accuracy of a skills test which it may be appropriate to be bear in mind when evaluating any results (as to which see above Allowance for other inaccuracies in assessment?):

  • in an assessment the other people involved will normally be strangers, which will often not be the case in the job – the person may find it easier talking to people they know;
  • the stammer may have greater effects because the person knows they are being tested;
  • it is an artificial situation;
  • it may be a relatively unfamiliar situation for the individual which again may exacerbate the stammer, and speech may become easier in the job as the person becomes used to it;
  • 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’);
  • the case of Mental Health Care v Biluan (above) illustrates how competence assessments may fail to reflect how people actually perform in the workplace.

Why allow for reasonable adjustments in job itself

An assessment of oral skills should probably include any adjustments that it would be reasonable to make in the job itself. I give examples of this above: Allowing for reasonable adjustments in the workplace.

The Employment Code below, at paragraph 16.55, suggests taking account reasonable adjustments in the job.

Doing so also seems right as a matter of legal principle:

  • As to the reasonable adjustment duty, given that the aim (so far as reasonable) is to assess how the individual will perform in the workplace, it is likely to be reasonable to adjust the assessment to reflect adjustments that would be reasonable in the workplace;
  • As to the justification test under s.15 EqA, an employer is unlikely to be able to show that rejecting someone based on their performance in the assessment was proportionate if the employer is unable to show that issues marked down in the test could not have been dealt with by reasonable adjustments in the workplace. If the issues could have been dealt with in this way, then the employer’s aims could have been dealt with in a less discriminatory way, by making adjustments in the workplace rather than rejecting the person’s job application.

The employment tribunal in HM Land Registry v Wakefield recommended that in a test for specific communication skills needed for the job, the claimant should be told (among other things) what adjustments might be considered to assist him perform the relevant aspects of the job (though the recommendation was revoked on technical grounds, for not specifying a ‘by when’ date).

In Lowe v Cabinet Office – which related to communication skills and Asperger’s syndrome in an assessment centre – as regards the disputed adjustments the employment tribunal did not take into account reasonable adjustments in the job itself. However the tribunal based this at least partly on an analogy with a Court of Appeal decision which was decided on the basis of police regulations which do not apply to employers generally. Also we do not know what type of adjustments in the job were being sought, and successful candidates were required to go round a succession of different jobs. In any event the case is only at employment tribunal level and so does not bind other tribunals. See Lowe v Cabinet Office>Comments: Reasonable adjustments in the job, and Hart case.

The most important types of Equality Act claim as regards assessing oral skills are ‘discrimination arising from disability’ under s.15 EqA, and the reasonable adjustment duty. Key tests are whether rejecting someone based on the assessment was “proportionate” (s.15) and whether any adjustments would have been “reasonable”. Tribunals may often see these issues as not very different from each other.

“Modifying procedures for testing or assessment” is expressly mentioned in para 63 of the Employment Code as an example of a possible reasonable adjustment. For that and more on the Code, see below Employment Code.

Legal background: Discrimination arising from disability

Discrimination arising from disability (s.15 EqA) can apply if an employer treats a disabled person unfavourably “because of something arising in consequence of” the disability. There may be other ways to analyse how s.15 applies to assessments, but one is that the “something” is the score from the assessment. The employer rejects someone for a job (treats them unfavourably) because of, or significantly influenced by, their score in the oral assessment. If that score (the “something”) arises from effects of the stammer, then the rejection is likely to be unlawful under s.15 unless:

  • the employer shows the rejection was a “proportionate means of achieving a legitimate aim” – the ‘objective justification’ test, or
  • the employer did not have actual or constructive knowledge of the stammer or other disability.

Very briefly, in deciding whether the rejection (or other unfavourable treatment) is “proportionate”, the tribunal balances the employer’s needs against the discriminatory effect on the individual, and considers whether the employer’s needs could have been met through less discriminatory means, such as reasonable adjustments in the job rather than rejecting the person.

There is authority that the “something” (eg the score) need only arise in part from the disability, eg the stammer. However it is not clear whether a s.15 claim could succeed if even without the disability the person’s scores would not have been high enough for them to get the job.

There may be a chain of causal links between the disability and the score in the assessment, rather than a simple link.

I said near the start of this page that, roughly speaking, the effect of s.15 and the reasonable adjustment duty seems to be that any discriminatory effect should be as small as reasonably possible, consistent with the employer being able to assess skills that are sufficiently important for the job. That wording is largely based on the proportionality test under s.15. However it also seems to set out key factors that should be relevant in deciding whether an adjustment is required under the reasonable adjustment duty (below), given the aim of avoiding disadvantage so far as reasonable.

Legal background: Reasonable adjustment duty

The reasonable adjustment duty applies mainly where a “provision, criterion or practice” (PCP) of an employer – such as assessments in the recruitment process, how the employer conducts them, criteria it applies in them – puts a disabled person at a more than minor or trivial disadvantage in comparison with persons who are not disabled. The employer is obliged to take such steps as are reasonable to avoid the disadvantage. The employer has a defence if it does not have actual or constructive knowledge of the disability or disadvantage.

Legal background: Knowledge

For both s.15 and the reasonable adjustment duty, the employer has a defence if it did not have actual or constructive knowledge of the stammer or other disability. For the reasonable adjustment duty, it also has a defence if it did not have actual or constructive knowledge of the disadvantage. See Knowledge of disability.

Partly because of that, but especially to try and get adjustments made in practice, if you think you may want reasonable adjustments it is probably a good idea to discuss adjustments in advance, perhaps after being invited for the interview/assessment. See above Discussing adjustments with the employer.

For s.15 claims, it seems that if the employer has actual or constructive knowledge of the disability, it need not know of the causal link with the disability: Knowledge of causal link with disability under s.15 EqA. For example, unlike with the reasonable adjustment duty, the employer need not know that effects of the stammer caused lower scores in the assessment; the employer may just have noticed that the person wasn’t participating much. In practice though, to persuade the employer to make adjustments and not to unfairly discriminate (and perhaps to make it harder for an employer to show it acted proportionately), it is likely to make sense to try and make sure the employer knows in what ways effects of the stammer may lead to lower results in the assessment compared with how you would perform in the actual job (with reasonable adjustments).

Legal background: Differences between s.15 and reasonable adjustment duty

The reasonable adjustment duty focuses on whether or not adjustments were made, rather than whether they would necessarily have changed the outcome. However the disadvantage must arise from a provision, criterion or practice (PCP), so the duty may not apply to a one-off decision (but it depends, see that PCP link). A s.15 claim does not need a PCP, but it may be important whether consequences of the stammer (eg effects on oral skills, lack of eye contact, difficulty getting heard in a meeting where perhaps lots of people are trying to speak) had a significant influence on the employer’s decision to reject the person for the job.

See also Legal background: Knowledge (above) for a futher difference.

Legal background: Indirect discrimination

‘Indirect discrimination’ can also apply. However it seems unlikely to add anything unless perhaps the employer did not have actual or constructive knowledge of the disability.

Some relevant cases

The main reported cases so far on assessing oral communication have been on reasonable adjustments, because they arose before 2010 when ‘discrimination arising from disability’ was introduced. Some are Employment Tribunal cases and therefore not binding precedents.

Wakefield v Land Registry, Employment Appeal Tribunal (EAT), 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 tribunal discussed alternative ways of assessing oral skills (see above on this page). The EAT reversed the tribunal decision, largely on the ground that some of the tribunal’s findings of fact could not be supported.

Lowe v Cabinet Office, Employment Tribunal, 2011
A claim for reasonable adjustments to an assessment centre for the Civil Service Fast Stream failed. The claimant had Asperger’s Syndrome. The tribunal said the further adjustments she sought would have meant that important competencies concerning relationships and communication were not assessed. There was compelling evidence that the competencies being assessed were, in practice, required on a daily basis in the workplace. The employer was willing to adjust how the competencies were assessed.

Y v West Yorkshire Combined Authority, Employment Tribunal, 2020
The tribunal concluded that the employer in this case did not score the claimant’s oral communication skills as part of scoring his responses to interview questions and scoring a presentation. Therefore issues of whether the employer’s assessment of communication skills was reasonable or justified did not arise.

G v British Airways, Employment Tribunal, 2020
The claimant had a stammer and applied to British Airways for a role as a Spanish-speaking customer service representative. He was rejected after an interview and role play scenarios. The tribunal said it was a “very comprehensive fail” of the interview and role plays. His stammer was “very mild”. Also his past experience was not the sort of background from which one might predict suitability as a Customer Relations Person at Heathrow Airport. Accordingly he was not allowed to amend his claim to include disability discrimination as there was insufficient prospect of success.

There have been other cases, not specifically on oral communication, where appeal courts have held that employers conducting assessments as part of a recruitment process had failed to make reasonable adjustments and/or were liable for ‘discrimination arising from disability’ (s.15) or indirect discrimination (s.19):

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, Employment Appeal Tribunal, 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 “fiendishly 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.

Cases on the related area of professional exams include Burke v College of Law and SRA, 2012, and Project Management Institute v Latif, 2007.

Employment Code

“Modifying procedures for testing or assessment” is expressly mentioned in the Employment Code para 6.33 as an example of a possible reasonable adjustment.

Para 16.52 of the Code says ability tests “should only be used if they are well designed, properly administered and professionally validated and are a reliable method of predicting an applicant’s performance in a particular job”.

Para 16.53 says “Tests should correspond to the job in question, and measure as closely as possible the appropriate levels of the skills and abilities included in the person specification.”

“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 of reasonable adjustments 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.”

Technical note: Employers’ knowledge and evidence for tribunal about difference in situation

A point I make in various places above is that effects of a stammer may be very different in different situations. See for example above Is the situation in which the skills are tested equivalent to the actual workplace situation? and Interview: Not an appropriate way to assess oral skills.

Example: An employer wants to use a group interview to assess how candidates will perform in meetings. However an individual who stammers may perform much better in a meeting on a workplace subject, as would happen in the job, than in a group interview asking about skills and experience etc.
See group interview example above.

Employers may not realise this, or they may wrongly think their assessment is close enough to the workplace situation to be a fair test. As regards knowledge of the employer (below) I suggest that it is a good idea anyway to tell the employer if the assessment is not fair, but what is the legal position?

Also employment tribunals (and appeal courts) may not appreciate the importance of the difference in situation. I suggest below considering getting expert evidence if bringing a tribunal claim (below).

Employer’s knowledge about difference in situation

Telling the employer anyway

Generally, whether or not knowledge by the employer is a condition of liability under the Equality Act, it is likely to be sensible to discuss reasonable adjustments with the employer in advance, including making sure they know of the disability and – so far as the individual can tell from what the employer is willing to say about the assessment – any relevant disadvantage, any adjustments the individual thinks would be reasonable, and why given the aim of assessing workplace skills. This is to try and get appropriate adjustments and be treated fairly. See above Discussing adjustments with the employer.

That seems particularly important as regards effects of the individual’s stammer being different in different situations. Employers may not realise this. Even if they do, they may well think their assessment is close enough to the work situation to be a good assessment, whereas actually it isn’t as regards that individual who stammers.

I’d suggest telling the employer clearly if an assessment is not a close enough match to the workplace situation to fairly test the individual’s abilities in the workplace, given their stammer. The aim is to be assessed fairly, and hopefully to get the job if one has the abilities to do it well. Also in any tribunal claim, letting the employer know sidesteps some possible legal issues.

However what about how far knowledge on the part of the employer is a condition of EqA liability, in this context (above Legal background>Knowledge).

Reasonable adjustment duty

To be liable under the reasonable adjustment duty, the employer needs actual or constructive knowledge of the disability and of the individual being at a (more than minor or trivial) disadvantage in the assessment in relation to the disability – broadly that the person is likely to score less due to effects of the stammer.

However I think that the employer does not need actual or constructive knowledge that the situation in the assessment is sufficiently different from that in the workplace that it does not fairly test the abilities of the person who stammers. The employer’s statutory defence is limited to where it does not have actual or constructive knowledge of the disability and disadvantage. If the employer does have that knowledge, the courts have emphasised the importance of the employer consulting with the disabled person, in its own interest: Reasonable adjustment rules: employment>Consultation. A quote at that link from the Employment Appeal Tribunal in Tarbuck v Sainsburys:

“There can be no doubt that any employer would be wise to consult with a disabled employee in order to be better informed and fully acquainted of all the factors which may be relevant to a determination of what adjustment should reasonably be made in the circumstances. If the employer fails to do that, then he is placing himself seriously at risk of not taking appropriate steps because of his own ignorance. He cannot then pray that ignorance in aid if it is alleged that he ought to have taken certain steps and he has failed to do so.”
Emphasis added by me.

Perhaps a court might reach a different conclusion if the employer did properly consult but the disabled person withheld the information.

Discrimination arising from discrimination, s.15 EqA

The employer does not have a statutory defence for lack of knowledge here, provided it knows of the disability. It seems the employer need not even know of the causal link between the disability and the unfavourable treatment, such as the rejection of the job application: Knowledge of causal link with disability under s.15 EqA.

Evidence in employment tribunal claim about difference in situation

I discuss above in Interview: Not an appropriate way to assess oral skills how the Employment Appeal Tribunal (EAT) in HM Land Registry v Wakefield held that the evidence available in that case (including a report from a speech and language therapist) could not justify the employment tribunal’s] conclusion that it was not reasonable to test in an interview the oral skills of someone known to “have a stammering problem” in that context when the aim was to ascertain how he would cope with challenges in a work context. The employment tribunal had commented that if the claimant knew he was going to a meeting about a subject he had mastered, he may not be dysfluent at all. However the EAT seemed to consider (without evidence) that the oral interview could be a valuable tool in assessing how the candidate would communicate “in a more confrontational setting” in the workplace.

The EAT’s attitude in this case shows that some judges may be resistant to the concept of an individual’s stammer being different in different situations, or they may draw false conclusions about what situations are equivalent – eg confrontational situations being equivalent to a job interview.

These things are likely to depend on the evidence. It is valid evidence for the individual to tell the tribunal how effects of their particular stammer are different in different situations, and what makes the difference for them. However in view of the scepticism of the EAT in the Wakefield case, it may be sensible to consider backing this up with appropriate expert evidence from a speech and language therapist with particular knowledge of stammering. She could hopefully explain to the tribunal that this is how stammering works, and add weight to the claimant’s assertions that the particular assessment is not a fair way to assess his skills as they would be in the workplace.

20th anniversary of stammeringlaw, 1999-2019