If a person applying for a job does not tell the employer about the stammer, how far may that affect any rights they have under the Equality Act 2010? This page assumes that the stammer is a ‘disability as defined.
Whether, when and how a job applicant should talk to a potential employer about the stammer is largely not a legal question. It is discussed in BSA’s guide: Job applications and interviews for people who stammer/ stutter. Amongst other things this invites you to look at strengths your stammer may have given you, which you can point out to employers.
This web page on the other hand focuses on legal issues. Much of it is about the possibility of letting the employer know about the stammer in advance of the interview or assessment. However, it also says something about letting the employer know at the interview itself.
Also note that there are rules restricting how far an employer can lawfully ask about disability before making a job offer – see Pre-employment enquiries.
In advance of interview
This deals with some possible legal consequences of not letting the employer know about the stammer before arriving for an interview or assessment.
If – in the light of what follows – you decide to let the employer know about the stammer before the interview, you may wish to do so after being invited for the interview, so as not to reduce the chances of being invited for it in the first place. (However, some people choose to mention the stammer in their application form, in the context of giving positive examples of their skills and experience.)
Reasonable adjustment duty – consequences of not telling the employer in advance
In summary, if you want reasonable adjustments in the recruitment process:
- not telling the employer in advance about the stammer may prejudice your legal right to adjustments;
- not telling the employer in advance can also make it less likely in practice that any adjustments will be made.
- However, a job applicant may have rights under the Equality Act even without having given advance notice.
Firstly, and perhaps most importantly, in practice reasonable adjustments to a recruitment process are more likely to actually happen if you give the employer advance notice.
Secondly, if the employer did not know of a disability (and the likely disadvantage) it may be able to rely on the ‘lack of knowledge’ defence, to say the reasonable duty did not apply. However, at least in some cases the stammer (and disadvantage) will be obvious in any event when the job applicant arrives for the interview – but see below At interview.
Thirdly, what adjustments it is reasonable for the employer to have to make may be less if it did not have advance notice of the disability. Accordingly the legal obligations on the employer may be reduced if advance notice is not given. See Reasonableness of adjustments: relevance of advance knowledge. For example:
It is evident at an interview that the job applicant taking significantly longer than normal to say things. However the employer considers it unreasonable to offer significant extra time so as not to keep the next candidate waiting too long, whose interview is booked to start after this one. If it had been arranged in advance, the interview of the job applicant who stammers could have been arranged at the end of a session with scope for it to overrun as required. (Even if extra time immediately is not reasonable, there would still be the question whether it is reasonable to, say, defer the interview to a later occasion when extra time could be given – as the tribunal seemed to contemplate in Y v Calderdale Council. Also other adjustments as well as extra time may be reasonable.)
As discussed under the ‘lack of knowledge’ defence, for the reasonable adjustment duty to apply the employer needs to have actual or constructive knowledge not only of the disability, but also of the disadvantage for which adjustments may be required.
The job applicant might suggest any adjustments he would like, or at least say enough about the disability to indicate the need for adjustments.
To conclude, one may well still have rights without having raised the issue of adjustments in advance, or at all. However, the clearest way to trigger the employer’s obligation is to give advance notice.
If the employer operates See ‘Disability confident’ and guaranteed interviews, having a disability may entitle one to a interview. Obviously one would need to tell the employer about the disability. (This is not actually a legal point, but one to bear in mind.)
Where someone applies for promotion, or another job at the same employer, the employer is likely to already know about the stammer. See particularly Knowledge of disability>Knowledge of any employee or agent will normally count.
Even so, letting the relevant person in the organisation know about the stammer and any need for adjustments may be helpful in practice, and might perhaps help any legal argument.
In S v Translink an existing employee applying for a different job did not raise the issue of the stammer. The employer was able to rely on the ‘lack of knowledge’ defence even though his line manager knew of the stammer. That decision is probably wrong, but it illustrates what can happen in practice if those dealing with the job selection process do not know of the disability.
The discussion above is on possible consequences of the employer not knowing about the disability, and the disadvantage which the adjustments are required to overcome.
However, it is not legally a precondition of the employer’s duty that the applicant suggests any adjustments he wants, though it may well be a good idea for the applicant to do so. The onus is on the employer.
Also in Y v Calderdale Council the tribunal accepted the force of the applicant’s argument that it was the employer which understood the exact purpose and nature of the recuitment process and that the applicant could not be expected to suggest all his own adjustments to cope with a process about which he was not fully informed.
If a job applicant hasn’t told the employer about the stammer before the interview or assessment, are there any legal consequences of not mentioning it at the interview or assessment itself?
One might think that the stammer will usually be obvious at the interview anyway so that the employer should be aware of the disability, without being expressly told about it. Presumably this will often be the case. An example:
Y v Calderdale Council (2003), Employment Tribunal
The tribunal found that by the time the interviewers came to ask the interview questions, it was obvious and certain to both of them that the applicant was at a substantial disadvantage from his disability.
However, are there situations where an employer might be held not to have notice of the stammer, even if the job applicant is stammering at the interview? One such case is S v Translink (below). It is far from clear if a tribunal would take a similar approach now in a properly argued case. However, the case illustrates that an employer may seek to raise an argument based on lack of knowledge even if one would think that the disability is evident:
S v Translink (2008), Employment Tribunal
It was clear from the evidence and the notes of the interviewer that the claimant’s speech impediment was notable in the interview. However the tribunal found credible the interviewer’s explanation for not commenting on it. The interviewer had no way of knowing whether the stammer was as a result of nerves or a ‘disability’ – as no information had been provided to him with regard to that issue. The employer could not reasonably be expected to know the claimant had a disability likely to put him at a substantial disadvantage in the assessment process, and accordingly had a defence to the reasonable adjustment duty.
Comment: Depending on the evidence, it may well be possible to argue in a future case that an employer, given similar facts, should take reasonable steps to find out if there was a disability. If disfluency is apparent, as was the case here, ‘a stammer’ is likely to sound different from normal disfluencies of someone (perhaps nervous) who does not have a stammer. See What if employer or service provider did not actually know? – taking reasonable steps to find out.
If the stammer is not sufficiently evident and the employer turns down the applicant because of something arising from the stammer, the employer may have a defence to discrimination arising from disability. The employer has this defence if it shows that it did not know, and could not reasonably have been expected to know, that the individual had the disability (see ‘lack of knowledge’ defence).
The employer’s lack of knowledge could also be relevant to any claim under the reasonable adjustment duty (above).
As to non-legal issues of telling the employer about a stammer at the interview (preferably in a positive way), see BSA’s guide: Job applications and interviews for people who stammer/ stutter.
Responding incorrectly to a question on disability
What if the employer asks about disability, and the job applicant answers the question falsely, and gets the job? (In practice, though, if an applicant who stammers is offered a job it will often. but not always, be evident to the employer by that stage that they have a stammer.)
Can employer dismiss the person?
Dismissal here may be unlawful under the Equality Act.
The employer might argue that it was the lying rather than the disability which was the reason for dismissal. However, the tribunal is likely to examine any such argument critically (see the Fitzpatrick case below).
To seek to avoid liability, a prudent employer is likely to want to consider how far, if at all, the disability actually affects the person’s ability to do the job, bearing in mind any reasonable adjustments – with a view to the employer being able to use the objective justification defence if it does decide to dismiss.
Fitzpatrick v British Railways Board  1IRLR 376, Court of Appeal
When the claimant obtained a job with British Rail, she had deliberately failed to provide full details of her previous employment or disclose her former participation in trade union activities. When the employer found out about her previous union activities she was dismissed. The employer said this was because she had obtained the job by deceit. She claimed unfair dismissal. For this (to overcome the fact that she did not have the required two years qualifying employment) she needed to show the reason, or principal reason, for her dismissal was trade union activities. The Court of Appeal said that if the deceit had been the primary reason for her dismissal, the primary reason would not have been trade union activities. However, the industrial tribunal had held that it was her trade union activities which were the prime reason for dismissal. Accordingly her claim succeeded.
Three comments on that case:
- As in that case, in a disability claim the tribunal may well hold that it was really the disability (or capability as a result of the disability) that was the – or at least ‘a’ – reason for the dismissal, even though there was deceit. Accordingly there could be a claim for direct discrimination or ‘discrimination arising from disability’.
- Unlike in that case, under the Equality Act the disability does not have to be the principal reason for dismissal. It is sufficient that the disability was a significant influence on the decision to dismiss – or, for a claim under s.15 EqA, that the ‘something arising in consequence of’ the disability, eg communication ability, had a significant influence.
- Even if deceit were the main reason for dismissal, under the Equality Act there would be questions of whether it could nevertheless be eg. direct discrimination or ‘discrimination arising from disability’.
O’Brien v Prudential Assurance Co  IRLR 140, Employment Appeal Tribunal
The claimant was dismissed from his job as district agent when it was discovered he had a long history of mental illness. He had not mentioned this when applying for the job, despite being asked specific questions on mental health. The employer had a policy of not appointing as district agents people with long histories of serious mental illness, because the job involved going into people’s homes. His dismissal was held to be fair.
This is an old case where the tribunal considered the employer’s policy of not appointing people with a background of mental illness to be reasonable. Accordingly, despite there having been deceit, the tribunal very much took into account whether the person was fit to do the job. A tribunal nowadays is likely to be less sypathetic to such a blanket ban on people with a history of mental disability. Also, the case is before disability discrimation legislation was introduced.
There are rules restricting how far employers can lawfully make pre-employment enquiries on health/disability. If the employer’s question about disability was in breach of those rules, one would expect that to strengthen the claimant’s case – but the technical postion would need to be researched.
Compensation claim by employer?
If the employer asks a question on disability and the job applicant answers it falsely, the Cheltenham case suggests that the employer may be able sue for damages (if it suffers any). However, a claim by the employer for compensation is likely to be very rare in practice.
Cheltenham Borough Council v Laird (2009)
A job applicant did not reveal a mental health history in response to a questionnaire of the employer. She was appointed to the job, and the employer subsequently sued for damages. Its claim failed since the court held her answers had been accurate, given the wording of the questions asked. However, the case indicates that similar claims might succeed in future.
Since that case, rules have been introduced restricting how far employers can lawfully make pre-employment enquiries on health/disability. Also, a compensation claim would presumably not succeed if failure to appoint a person who had disclosed the disability would have been a breach of the Equality Act.
In Y v Calderdale Council, a case about stammering, the tribunal commented that it is not uncommon for a disabled applicant for a job to minimise, on the application form, the extent of his/her disability so as to increase his/her chances of being shortlisted. The applicant had told the tribunal: “In the past my experience has been that if I’ve requested adjustments I have not been shortlisted.”