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Recruitment: Should I tell the employer I stammer?

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This page does not apply outside Great Britain.
Last updated 3rd December 2022 (part update 2nd February, 2024).

From a practical point of view, it is best to arrange any reasonable adjustments in advance. Also if a person applying for a job does not tell the employer about the stammer and how the recruitment process puts them at a disadvantage, this may affect their rights under the Equality Act 2010.

Summary

Knowledge of disability deals with the legal rules on this more generally.

Largely not a legal question

Whether, when and how a job applicant should talk to a potential employer about their stammer is largely not a legal question. It is discussed to some extent under “To disclose or not” on Job interviews & stammering. Quite apart from issues of requesting adjustments, you could consider what strengths your stammer has given you and point them out to employers:

Examples of strengths from a stammer might include resilience, creativity, patience, ‘listening intelligence’ (stamma.org), writing, and other communication skills such as awareness of needs of others, and being observant. Also for some jobs being ‘not perfect’, in other words having a vulnerability, may help people you are dealing with relate with you.

“One patient actually said to me, in response to me apologising for stammering: ‘It is the fact that you have a stammer that makes you such a great listener and compassionate nurse’.”
Final year student nurse: I’m so glad I ignored the doubts of my 17-year-old self (stamma.org), 2022.

“There are advantages to stammering, especially in sales: your stammer makes you memorable, important in a world full of grey, boring people.”
A stammering odyssey (stamma.org), 2020.

“I have had many deeply personal conversations with other people because my stuttering allowed them to feel comfortable talking with me. They have explicitly told me that my stuttering has made me approachable and relatable.”
Stuttering Gain (isad.live) by Christopher Constantino, 2016.

See also below At interview or assessment>Non-legal issues.

However this web page 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.

Note too that s.60 EqA restricts how far an employer can lawfully ask about disability before making a job offer – see Pre-employment enquiries.

Wait until receive invitation for interview?

If you decide to let the employer know about the stammer in advance, I think there’s a lot to be said for doing so only after receiving the invitation for the interview, when agreeing a time for it. This means the disclosure should not reduce the chances of being invited for an interview.

However, some people do choose to mention their stammer in the application form, in the context of giving positive examples of their skills and experience.

Consequences of not telling employer in advance

Reasonable adjustments

In summary, if you want reasonable adjustments in the recruitment process:

  • not giving the employer advance notice of the stammer may reduce your legal right to adjustments; and
  • not telling the employer in advance often makes it less likely in practice that any adjustments will be made.
  • However, a job applicant may have Equality Act rights even without having given advance notice.

Firstly, and most importantly, in practice reasonable adjustments to a recruitment process are more likely to actually happen if you give the employer advance notice: see further below What to tell the employer in advance of the interview. That allows time for them to be considered and appropriate arrangements made.

Secondly, if the employer does not know of the disability and of the likely disadvantage at the time it should have made the adjustment, it may have the legal defence that it did not have actual or constructive knowledge so that the reasonable duty does not apply. At least in some cases, the stammer (and disadvantage) will be plain to listeners when the job applicant arrives for the interview. However, as I discuss below and at Knowledge of disability>Better to tell employer etc rather than rely on constructive knowledge, except in the most obvious cases it is difficult to be sure a tribunal will decide the employer has sufficient actual or “constructive” knowledge. Even if the employer knew of the stammer, there are cases (see that link) where a reasonable adjustment claim failed because the tribunal held the employer did not have actual or constructive knowledge of the relevant disadvantage, for example saying less due to the stammer (“Constructive knowledge” is if the employer did not actually know but could reasonably have been expected to know, mainly if the employer knew enough that it could reasonably have been expected to make enquiries which would have led it to find out).

Thirdly, what adjustments it is reasonable for the employer to have to make may be less if the employer did not have advance notice of the disability, especially since practicability is a factor in deciding what is reasonable. Accordingly the legal obligations on the employer may be reduced if advance notice is not given. See Knowledge of disability>Reasonableness of adjustments: relevance of advance knowledge. For example:

It is evident in an interview that the job applicant is taking significantly longer to say things. However another candidate’s interview is booked after this one and the employer doesn’t want to keep the other candidate waiting too long. The employer therefore considers it unreasonable to offer significant extra time for this interview. If extra time had been arranged in advance, this interview could have been arranged at the end of a session, with scope for it to overrun as required.
Note: Even if extra time immediately is not reasonable, there would still be the question whether it is reasonable to consider alternatives such as defering the interview to a later occasion when extra time could be given. The tribunal seemed to contemplate this in Y v Calderdale Council. Apart from extra time, other adjustments may also be reasonable.

To conclude, a job applicant may 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. What to tell the employer is discussed below: What to tell the employer in advance of the interview.

Discrimination arising from disability (s.15)

‘Discrimination arising from disability’ (s.15) is where the employer treats a disabled person unfavourably “because of something arising in consequence of” the disability. The employer has a defence if it shows either justification or – the focus of this page – that it did not know, and could not reasonably have been expected to know, that the individual had the disability. See Knowledge of disability: Discrimination arising from disability.

Examples of ‘discrimination arising from disability’ could include (if unjustified) being turned down for a job because of:

  • communication skills affected by the stammer,
  • circumlocutions to get round words you have difficulty saying,
  • excessive fillers such as “eh”, “you see”, “well” when you can’t say the next word (“excessive” in the employer’s view),
  • not saying enough in response to questions to put you on a level playing field with other candidates, because of wanting to stammer as little as possible or because of difficulty speaking (though reasonable adjustments may be a better way to address this issue of limited responses: see Examples of reasonable adjustments: Recruitment>Limited responses).

As with reasonable adjustments above, letting the employer know you have a stammer should make it clearer that the employer can’t rely on the defence that it did not have actual or constructive knowledge of the disability.

If the employer knew of the disability, it seems it is not legally a defence that the employer did not know of the causal link with the disability, for example that the circumlocutions resulted from the stammer: Knowledge of causal link with disability under s.15 EqA. However obviously if you want the employer to actually disregard things such as this, which the employer may not know are an effect of the stammer, you will probably need to tell the employer about them. How far this is a good idea and whether you want to do so is up to you. (Also, though the law is unclear, a tribunal may be more likely to find the employer’s decision is justified under s.15 if it was not told.)

Guaranteed interview scheme

If the employer operates “Disability confident” and guaranteed interviews, having a disability may entitle a disabled job applicant to an interview. Obviously the job applicant would need to tell the employer about their disability when applying for the job.

Application for promotion

Where someone applies for promotion, or for another job at the same firm, the employer may well 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 of any need for adjustments may be helpful in practice, and may perhaps help any legal argument.

S v Translink Industrial Tribunal Northern Ireland, 2007/8
An existing employee applying for a different job did not raise the issue of the stammer. The employer successfully relied on the “lack of knowledge” defence even though his line manager knew of the stammer.
Note: That tribunal decision is probably wrong in law, but at least illustrates what can happen in practice if those dealing with the job selection process do not know of the disability.

What to tell the employer in advance of the interview

If you decide to tell the employer about the stammer and perhaps ask for adjustments in advance of the interview, what should you tell them about? Obviously this is up to you, bearing in mind your own stammer and want you want the employer to do, but consider the following:

1. Say that you have a stammer

Tell the employer that you have a stammer which is a disability within the Equality Act.

The employer has a defence to both the reasonable adjustment duty and a s.15 claim for discrimination arising from disability if it did not know and could not reasonably be expected to know of the disability: see Knowledge of disability.

Legally, knowing of the stammer does not necessarily mean the employer knows of the ‘disability’. However (especially if you say it is a disability) that may well be enough to put the employer on notice so that the employer has at least ‘constructive knowledge’ of the disability: see Knowledge of disability>Facts of disability: Not necessarily enough to know of the stammer?

2. Specify what adjustments you want

Ask for any adjustments you want. Specify what particular adjustments you would like so far as you can, preferably after asking the employer what will happen in the recruitment process so that you have a better idea what issues you will face: see also below Invite or request discussion. (There are examples of adjustments at Examples of reasonable adjustments: Recruitment.) If there’s something particular you’d like done, don’t just hope the employer thinks of it.

Most importantly, asking for particular adjustments makes it more likely that they will be made in practice.

From a legal point of view, so far as the adjustments aim to address particular disadvantages (below) arising from the person’s stammer, specifying the adjustments helps with any arguments the employer may raise that it could not reasonably be expected to know of these disadvantages: see Knowledge of disability>Better to tell employer etc rather than rely on constructive knowledge.

A helpful web page to point employers to is Interterviewing people who stammer (stamma.org) and In conversation with someone who stammers (stamma.org). However I’d still suggest specify to the employer what particular adjustments you would like, so far as you can.

See also below Technical note: Possible arguments that you don’t have to tell the employer of specific adjustments and disadvantages.

3. Consider telling the employer what the ‘substantial disadvantage’ is

If it is not obvious, consider telling the employer what the substantial (ie “more than minor or trivial”) disadvantage is that you would be under if the adjustment is not made, again preferably after asking the employer how the recruitment process will run so that you have a better idea what issues you will face.

Even if you are not sure exactly what adjustments will be appropriate or what disadvantages you will be under, without writing an essay you could try to tell the employer any key ways you think you may be disadvantaged by the recruitment process, as well as suggesting any adjustments you would like so far as you can, and requesting or inviting discussion (below).

For example: If you are asking that the employer pose follow-up questions if your answers are unduly short (as in Glasson v Insolvency Service and Y v West Yorkshire Combined Authority, below), and/or that the employer gives no less weight to details in your written application and CV than interview answers, the disadvantage might be that you will tend to limit what you say at the interview because of the stammer. You may therefore not say enough to put you on a level playing field with other candidates. Limiting what you say might be either so that you don’t stammer as much, or because of the time or effort to speak.

In Glasson v Insolvency Service, EAT, 2024 and – at least for the presentation – in Y v West Yorkshire Combined Authority (below), 2020, the tribunal (upheld on appeal in Glasson) did not see the employer as having actual or constructive knowledge of the job applicant’s disadvantage of limiting what they said due to their stammer. This was even though the employer knew of the stammer.

It should depend on the facts of course. In Y v Calderdale Council the claimant had an obvious and severe stammer. The tribunal said the amount of information he was able to convey compared to other candidates was much reduced, and it was obvious and certain to the interviewers that the claimant was at a substantial disadvantage.

Note: There is more on these cases at Knowledge of disability>Stammering cases: knowledge of disadvantage (limited responses).

The employer has a defence to a reasonable adjustment claim if it does not know and could not reasonably be expected to know of the substantial disadvantage. If you have specifically asked for a particular adjustment, it may be difficult for the employer to say it could not reasonably have been expected to know what the substantial disadvantage was (eg they could have asked you if they could not guess it from the adjustment). However these things are not necessarily clear, and see this case example:

Y v West Yorkshire Combined Authority, Employment Tribunal, 2020
The claimant told the employer he had a stammer and specifically requested that the panel ask follow-up questions in the interview, presumably because of the risk of his responses being limited because of his stammer. Even so the tribunal found that the employer did not know and could not reasonably be expected to have known that the claimant had any difficulties in expressing the oral content of his presentation – ie roughly that his stammer was likely to affect the actual content of the presentation rather than just how he said it and how long it took.

However the tribunal said the employer did know that the claimant was likely to be at a substantial disadvantage in relation to the time he took to communicate and his speech fluency.

See also below Technical note: Possible arguments that you don’t have to tell the employer of specific adjustments and disadvantages.

Or consider explaining disadvantage in the actual interview, if it is getting in the way

If you have not told the employer of something in advance, and you find it is really affecting your performance in the interview, or elsewhere in the recruitment process, you could still (if you wish) tell the employer then, and adjustments could be discussed. An example of where the disadvantage only became apparent to the employer during the interview (which could be through the employer being told of it):

Y v Calderdale Council, Employment Tribunal (ET), 2003
The claimant had a severe stammer. The ET said that when the disadvantage caused by the stammer became apparent to the council in the interview, the council could, without disruption or significant expense, have taken immediate practicable action to prevent the disadvantage suffered by the claimant by adjourning the question and answer session and devising, with the co-operation of the claimant, a suitable format for this element of the recruitment process which would have given the claimant an equal opportunity to that of the other candidates.

In a case where the disadvantage seems not to have been obvious, and the candidate did not tell the employer, a reasonable adjustments claim failed:

Glasson v The Insolency Service, Employment Appeal Tribunal (EAT), 2024
The employer knew of the claimant’s stammer. The claimant had said in advance only that he might need extra time. The claimant struggled to give full answers to questions in the interview, and entered what he referred to as “restrictive mode”, where he limited what he was saying. The claimant had thoughts of terminating the interview, but decided to continue. The tribunal found that the employer did not have actual or constructive knowledge of this disadvantage, so it rejected his claim for reasonable adjustments. The EAT upheld this decision.
Note: If an interviewee told the panel of the difficulty, the interview might perhaps be paused or adjourned rather than terminated, to discuss what adjustments could be made.

While telling the employer during the interview should be helpful in getting some adjustments (and in having a legal right to them), it may be less beneficial than telling the employer in advance: above Consequences of not telling employer in advance.

4. Explain why it would be unfair not to make the adjustment?

Strictly this should not be legally required if the employer knows of the disability and disadvantage (Technical note, below). However if it is not obvious, it may well help in getting adjustments actually made.

The employer may not appreciate why its recruitment process is unfair, without this being explained.

Example: The employer may think a group interview is a fair way to assess how candidates will perform in a meeting in the workplace. If the individual would find a workplace meeting easier as regards their stammer, the employer may not appreciate that the group interview is not a fair way to assess how this individual who stammers will perform in the actual workplace because (a) the assessment has not been designed to match the meeting situation as it will be in the workplace and/or (b) in any event effects of the stammer will be greater in an assessment than in the workplace.
See too Oral assessment in recruitment>Technical note: Employers’ knowledge and evidence for tribunal about difference in situation and effects of assessment.

5. Invite or request discussion

Specifically request or invite the employer to discuss with you what adjustments are appropriate, or – if you are happy that whatever adjustments you’ve suggested will be enough without discussing them – at least make clear you are happy to discuss them. (I’ve also suggested above that before proposing particular adjustments, you ask the employer how the recruitment process will run so that you have a better idea what issues you will face.)

Requesting or inviting discussion is probably a good idea anyway, but is particularly important if you are not clear on the recruitment arrangements and so cannot say what adjustments will be appropriate for you. You may particularly want a discussion here.

For example a job applicant may not be clear on what exercises they will be asked to take part in in the recruitment process (including in any assessment centre), the detail of how these will work, what their purpose is, how important particular skills are in the job (a point relevant to what can be adjusted), whether the assessment situation matches the workplace situation in which the skills/abilities will be required, what reasonable adjustments might be feasible in the job and so should be reflected in any exercises. See Oral assessments in recruitment – including on that page Discussing adjustments with the employer – and Presentations in recruitment. Finding out what adjustments are required may involve talking through the recruitment process.

In Y v West Yorkshire Combined Authority, 2020, it sounds like the interviewers were not sure whether the individual would be happy to discuss adjustments, since they had read that stammering is of a sensitive personal nature. Making clear you want to – or at least are happy to – discuss them:

  • makes the employer more likely in practice to discuss them with you, and
  • legally may help rebut any argument by the employer that it could not reasonably be expected to discuss them, and so did not have constructive knowledge.

In Y v Calderdale Council, 2003, the tribunal accepted the force of the job applicant’s argument that it was the employer which understood the exact purpose and nature of the recruitment process, and that the job applicant could not be expected to suggest all his own adjustments to cope with a process about which he was not fully informed.

Although s.60 Equality Act (Pre-employment enquiries) partially prohibits an employer from asking about health or disability before a job offer, the prohibition does not apply to enquiries necessary for the purpose of establishing whether a duty to make reasonable adjustments is or will be imposed on the employer in relation to the job applicant in connection with a requirement to undergo an interview or other assessment.

6. Discrimination arising from disability (s.15)

Consider whether or not to say anything further about the effects of the stammer as discussed above: Consequences of not telling the employer in advance>Discrimination arising from disability (s.15).

At interview or assessment

If a job applicant hasn’t told the employer about the stammer before the interview or assessment, are there legal consequences of not mentioning it at the interview or assessment itself?

Would the interviewers be aware of the stammer?

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. This was the case in:

Y v Calderdale Council, Employment Tribunal, 2003
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, ie his stammer.

However sometimes a tribunal may hold that an employer does not have notice of the stammer, even if the job applicant is stammering at the interview. This was so in 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 Translink case illustrates that an employer may at least seek to raise an argument based on lack of knowledge even where one might think the disability is evident. Note too that even if the employer in that case were deemed to know of the disability, the employer might well succeed in an argument that it did not have actual or constructive knowledge of any substantial disadvantage giving rise to a duty to make reasonable adjustments.

S v Translink, Industrial Tribunal Northern Ireland, 2008
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 that the interviewer’s explanation for not commenting on it was credible. The tribunal said 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: This decision can be criticised: S v Translink>Lack of knowledge even though stammer was notable at the interview. Even so, it shows that the tribunal may come to an unexpected decision even if the stammer is evident.

Contrast a later case where the employer was held to have sufficient knowledge of the stammer:

W v TJ Morris (t/a Home Bargains), Employment Tribunal, 2022
The claimant had stammered both in the job interview and afterwards in the job. The tribunal held that the employer could reasonably be expected to know that she had a disability. “In particular, we have found that her regular difficulty with saying some words would have been evident at interview, when she was stressed and speaking to someone she didn’t know. This would have been sufficient to put [the area manager] on notice that she had a stammer, even if he did not realise this met the legal test of a disability.” (After hearing her tribunal evidence the employer had accepted that the claimant’s stammer was a disability within the EqA.)

Legal relevance of knowledge

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 under s.15 EqA. 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 a disability within the Equality Act. The same defence applies to the reasonable adjustment duty, where it also extends to lack of knowledge of the substantial disadvantage. See Knowledge of disability.

Also see above Consequences of not telling the employer in advance and What to tell the employer before the interview for discussion of possible consequences of not telling the employer eg what adjustments you want and what disadvantages the stammer puts you at in the recruitment process.

More importantly, there will often be non-legal advantages of telling the employer about the stammer, including potentially both interviewee and interview panel feeling more comfortable that it is out in the open, and the interviewee perhaps feeling more able to say what they want without keeping trying to conceal the stammer.

See also above Largely not a legal question, including on telling an employer about the stammer in a positive way,

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 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?

If an employer finds out a person has lied about a disability, can they 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). In any event, as outlined below, the EqA tests are more favourable to claimants than those in Fitzpatrick.

To try to avoid liability, a prudent employer is likely to consider how far, if at all, the disability actually affects the person’s ability to do the job, with any reasonable adjustments. The employer could then seek to show objective justification if it does decide to dismiss, on the basis that the effect of the stammer on the person’s ability to do the job makes dismissal a proportionate response.

Fitzpatrick v British Railways Board [1991] 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. To claim this (because she did not have the required two years qualifying employment) she needed to show that 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:

  1. As in the Fitzpatrick 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 reason – 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.
  2. 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 had 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.
  3. Even if deceit were really the sole reason for dismissal, under s.15 EqA it might be argued that the deceit was something arising from the disability: compare the Risby and Ahmed cases at Discrimination arising from disability>The disability need not be the only effective cause of the “something”.

O’Brien v Prudential Assurance Co [1979] 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.
Comment: This is an old case on ‘unfair dismissal’, 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 sympathetic to such a blanket ban on people with a history of mental disability. Also, the case is before disability discrimination 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 this to strengthen the claimant’s case – but the technical position 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 below suggests that the employer may be able to 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, High Court, 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, the Equality Act has introduced a rule (s.60) 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.

Tribunal comment

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.”

Technical note: Possible arguments that you don’t have to tell the employer of specific adjustments and disadvantages

This note is supplementary to 2. Specify what adjustments you want and 3. Consider telling the employer what the ‘substantial disadvantage’ above.

As discussed there, even if the employer knows you have a disability, the legal position is clearer if you have told the employer what adjustments you want and of any substantial disadvantages which are not obvious and for which you want adjustments. So I’d suggest telling the employer. But what if you haven’t told them? Although best avoided if possible, legal arguments for not having to tell the employer include the following:

  • As regards the employer having a defence to the reasonable adjustment duty if it did not have actual or constructive knowledge of the disability or of the “substantial disadvantage”, the employer has “constructive knowledge” of things it would have found out if it had made the enquiries (eg asking the individual) which it could reasonably have been expected to make: Knowledge of disability>Constructive knowledge. So the employment tribunal would need to decide what enquiries the employer could reasonably have been expected to make, given the information it had, and would the enquiries have elicited the information that (as well as the person having a disability within the EqA) the provision, criterion or practice (PCP) put the disabled person at a more than minor or trivial disadvantage compared with non-disabled job applicants.
  • If the employer does have actual or constructive knowledge of the disability and disadvantage (so that the ‘lack of knowledge’ defence does not apply), it seems the employer has no further defence if the employer did not know what adjustments would be helpful and reasonable. The courts have said that an employer who does not consult on reasonable adjustments with the job applicant, eg as to what adjustments would help, is at serious risk of being in breach of the duty, since it cannot “pray that ignorance in aid”: Reasonable adjustment rules: employment>Consultation.
  • The onus to make reasonable adjustments is on the employer, rather than the claimant necessarily having to suggest adjustments before they are made: Reasonable adjustment rules: employment>Onus to comply is on the employer.
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