Home » Glasson v The Insolvency Service: Employer not required to adjust interview as unaware of disadvantage

Glasson v The Insolvency Service: Employer not required to adjust interview as unaware of disadvantage

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Last updated 2nd February 2024.

The claimant’s answers in an interview were not full enough, as he limited them due to his stammer. He called this his “restrictive mode”. The employer knew of his stammer. However, the tribunal found the employer did not have actual or constructive knowledge of the disadvantage. The tribunal therefore rejected his claim for reasonable adjustments. It also rejected a claim under s.15 EqA. On appeal, the EAT upheld this decision.

2024, Employment Appeal Tribunal (EAT). Full decision: www.bailii.org/uk/cases/UKEAT/2024/5.html. (Appeal from Employment Tribunal decision (gov.uk), 2022).

Paragraph numbers are given for the decisions of the Employment Appeal Tribunal (EAT) and/or Employment Tribunal (ET).

Table of page contents

Summary

The claimant was turned down for a promotion with his existing employer, who knew of his stammer. The interview was by video, due to Covid-19.

His oral interview answers were not full enough, as due to his stammer the claimant went into his “restrictive mode”, as he called it. Feedback from the interview panel was that some of his answers were not fully expressed. He claimed that reasonable adjustments should have been made for this.

The employment tribunal (ET) rejected his claim, because it found the employer did not have actual or constructive knowledge of the disadvantage, ie that his less full answers were due to his stammer. The claimant had told the employer he might need more time, but had not told it of this other disadvantage. (No “constructive knowledge” means that the employer could not reasonably be expected to know of the disadvantage, in particular it was not reasonable to expect the employer to make enquiries.)

The ET also rejected his claim for discrimination arising from disability (s.15 EqA), saying the employer had shown its actions were justified, ie a proportionate means of achieving a legitimate aim. Among other things, holding interviews by video was justified given the Covid-19 pandemic.

The claimant’s appeal to the Employment Appeal Tribunal (EAT) was unsuccessful. The EAT held the ET was entitled to reach the decisions it did.

Comment

Making sure the employer knows in advance of the need for particular adjustments in a recruitment process is in any event the best way of trying to make sure they happen in practice. However also from a legal point of view, this case illustrates that someone who does not give full responses because of their stammer may not have the right to reasonable adjustments for it unless they specifically tell the employer. It also is sensible to tell the employer of any particular adjustments the person wants. Below Lesson on telling employer about limited answers.

There is a lot of scope for an ET to reach its own decision, for example on whether the employer should reasonably have made enquiries about a disadvantage, based on the facts of the individual case. The EAT decision here does not mean that an ET has to reach the same result on broadly similar facts. Below Comment: Limited scope of appeal to EAT.

There are further comments below: My comments.

Facts

The claimant had worked for the employer for 15 years. The employer knew he had a stammer, and accepted that his stammer was a disability within the Equality Act 2010 (EqA).

The claimant’s performance with the employer was “to a high level, and has been throughout his employment. There have never been any questions raised concerning the claimant’s level of work performance.” He had recently been given two temporary promotions, all of which “supports the finding that the claimant was working effectively and to a high level during his employment” [ET 3, EAT 5].

The claimant was interviewed for a promoted/new role in July 2020. This was by video conference because of the Covid-19 pandemic. The claimant did not request any adjustments to the selection process, other than requesting additional time. After the selection process, the claimant did not raise any issue of having had difficulty as a result of his stammer. [ET 4-5, EAT 5]

The claimant then applied for a permanent role as Deputy Official Receiver. It was this job application that led to the ET claim. He requested reasonable adjustments in the application form, saying “I have a stammer and may require longer to answer questions in the interview”. [ET 6-7, EAT 6]

The interview for the role of Deputy Official Receiver was in September 2020, again by video conference because of the pandemic. The claimant “struggled to give full answers to the questions being asked, and entered what he referred to as ‘restrictive mode’, which is where the claimant limits what he is saying.” The claimant’s evidence on the fullness of his answers in the interview was consistent with the feedback the panel gave at the time, in that some of his answers were not fully expressed. [ET 8-9, EAT 7]

The claimant did not explain to the interviewers how he was having difficulties expressing himself at the interview. Although he “had thoughts of terminating the interview at the time, he continued to provide answers to the questions he was asked as he considered this to be least worse option. When the claimant was asked questions he continued to provide answers, and when he was prompted for further information, he provided responses.” [ET 10, EAT 7]

The claimant did not tell anybody at the employer either before or during the interview process, nor anybody on the panel, about this impact of his stammer, or why he was not able to provide fuller answers. He simply assumed that the interviewers knew. [ET 11, EAT 7]

The ET said the claimant “scored reasonably well in the process” and was “deemed to have passed the interview”. However, the claimant scored one point less than the second successful candidate. The employer offered the two available posts to the candidates that were placed first and second. The claimant, placed third out of all the candidates, was put on a reserve list. [ET 12, EAT 8]

He claimed for failure to make reasonable adjustments under s.20 EqA, and discrimination arising from disability under s.15 EqA.

Held: The employment appeal tribunal (EAT) upheld the employment tribunal (ET) decision that his claims failed. As regards reasonable adjustments, the ET was entitled to find that the employer did not have actual or constructive knowledge of the disadvantage. As regards his s.15 claim, the ET was entitled to find that the employer had shown justification.

Reasonable adjustments

Legal background

Under the reasonable adjustment duty (s.20 EqA), where a “provision, criterion or practice” (PCP) applied by or on behalf of an employer puts a disabled job applicant or worker at a substantial (ie “more than minor or trivial”) disadvantage in comparison non-disabled people, the employer is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage. The employer has a defence if it does not have actual or constructive knowledge that the person has the disability and is likely to be placed at the substantial disadvantage. “Constructive knowledge” is where the employer could reasonably have been expected to know of the disadvantage, particularly where it would have been reasonable for the employer to make enquiries but it failed to do so.

The relevant disadvantage here was that the claimant’s stammer meant he did not provide full answers to all questions at the interview, because he entered “restrictive mode” [eg EAT 34, 46]. The issue was whether the employer had actual or constructive knowledge of this disadvantage.

ET on knowledge of disadvantage

The employment tribunal (ET) found the employer did not have actual or constructive knowledge of the disadvantage:

13. Consequent to the findings above, in these circumstances, the tribunal concludes that the [employer] did not have knowledge, either actual or constructive, of the disadvantage that the selection/interview process was putting the claimant at due to his disability. The claimant was working to a high standard in his role, he had been interviewed through a video conferencing format previously and raised no concerns, he raised no concerns in advance of his interview for Deputy Official Receiver either on his application form or elsewhere, he provided answers in the interview which were reasonably competent, albeit not as detailed as the panel expected. It is in these circumstances that that the tribunal concludes that knowledge on the part of the [employer] of the substantial disadvantage has not been established in this case.

EAT upheld decision that no actual or constructive knowledge

In the employment appeal tribunal (EAT), the claimant challenged in various ways the ET decision that the employer did not have actual or constructive of this disadvantage. For example, the claimant argued that the ET had failed to consider whether the fact that some of his answers were “not fully expressed”, or “not as detailed as the panel expected”, should have led the employer to make reasonable enquiries as to whether his stammer (of which they were aware) might be having that effect. The EAT rejected all the claimant’s arguments. It held that the ET had been entitled to decide the employer had no actual or constructive knowledge of the “restrictive mode” disadvantage.

The wider context, said the EAT, was that the claimant said, and the ET accepted, that his stammer had two distinct effects on how he communicated orally, particularly in the live oral interview for this job. The first was that in oral questions and answers he may need more time to complete giving his answers. The second was what he called “restrictive mode”, such that he may limit some answers, in order to avoid stammering. The complaints before the ET, as heard, related entirely to the second effect. [EAT 44]

It was undisputed, said the EAT, that the claimant did not at the time specifically refer to, or explain, the possibility that he might go into restrictive mode (whether or not using that term) or seek any adjustment in that regard, in the form relating to this job application. The focus of the claim, and of the ET’s decision on it, was the issue of constructive knowledge. [EAT 52]

Relevance of general work performance and of previous job application and interview

The EAT accepted that it had been proper for the ET to see these as relevant, in considering whether there was anything in the wider background or context to show the employer had previously been made aware of the “phenomenon” (as the EAT called it) of the claimant going into “restrictive mode”, so as to give the employer actual knowledge of this. They could also be relevant in considering whether anything in this background might contribute to the argument that the interviewers should have had reason to suspect that this might be going on in the interview, and/or to make proactive enquiries about whether it may be. [EAT 53]

While the ET had accepted that going into restrictive mode was something that the claimant did sometimes on account of his disability, and did in this interview, the ET’s view was that he did not do so to such a severe extent, or so pervasively, that this should reasonably have alerted the interviewers to the fact that his disability might be affecting his answers in this particular way. The ET had noted that the panel’s feedback was that “some of” his answers were “not fully expressed”, he “continued to provide answers” and “when he was prompted for further information, he provided responses”, and he was deemed to have passed the interview, and missed out by only one point. These findings all painted a picture that, while the ET accepted that going into restrictive mode had some impact, its effect in the interview was not so dramatically obvious as to put the interviewers on enquiry. [EAT 54-55]

The ET properly relied on the evidence as to the claimant’s general performance at work as consistent with, and supporting, that picture. The ET was simply making the wider point that, while it accepted the claimant had entered restrictive mode during the interview, there was no suggestion that his doing so in general had had such an impact on his performance at work, that the employer should have appreciated there might be a particular problem of this sort relating to his stammer, affecting his interview answers. [EAT 56]

The claimant’s lawyer argued the ET had been wrong to consider that the employer could not have known of the disadvantage because of the claimant’s past good performance, and his generally good performance at interview. The ET, argued the claimant’s lawyer, seemed to imply that disability equates to poor performance, thereby wrongly making a stereotypical assumption that stammerers could not be high performers. The EAT said the ET did not engage in any form of stereotyping. On the contrary, the ET had not assumed that all persons with a stammer would be affected by it in the same way, or to the same degree. The ET wholly accepted that the claimant’s stammer did have the effect on him at interview that he claimed. But the ET properly concluded, on the facts of this case, that he was not affected by it at interview to such a degree or extent that it put his interviewers on constructive notice of that effect. [EAT 29, 57]

Did ET consider whether truncated answers should have put employer on notice?

The EAT did not accept that the ET erred by failing to address whether the claimant’s truncated answers should have reasonably put the interview panel on enquiry. The final matter listed in para 13 of the ET’s decision was that the claimant gave answers in interview which were “reasonably competent, albeit not as detailed as the panel expected”. Perhaps it would have been better if the ET had spelled it out, but in the context the clear and obvious sense was that the ET did not consider that the claimant’s answers were so dramatically affected as to put his interviewers on enquiry that this might be because of another effect of his disability, distinct from the one that he had drawn to the interviewers’ attention. [EAT 58]

Perversity?

The EAT also held that the claimant’s statement to the employer “I have a stammer and may require longer to answer questions in interview” did not mean the ET’s decision was perverse. The claimant had not declared or described the distinct effect that he might go into restrictive mode. [EAT 60]

[My comment: below Comment: Lesson on telling employer about limited answers.]

Justification under s.15 EqA

Legal background

Discrimination arising from disability under s.15 EqA is where the employer treats a disabled job applicant or worker unfavourably “because of something arising in consequence of” the disability, and cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim (justification). The employer also has a defence if it did not have actual or constructive knowledge of the disability, but here the employer accepted it knew of the disability.

Claimant’s argument to EAT on justification

For the ET decision on justification, see below ET: Discrimination arising from disability (s.15 EqA).

The claimant argued that the ET erred by considering whether the use of videoconferencing (and only that policy) was justified, whereas it should have considered whether the unfavourable treatment – namely receiving lower scores in the interview process – was justified.

Also, by wrongly considering whether the decision to use videoconferencing was justified, the ET took into account a number of irrelevant factors, including the numbers of people affected by the decision to hold interviews in that way (the ET said only a small number of people were affected [ET 20]), the impact on the claimant of holding interviews in that way (the ET assessed the discriminatory impact on him as low since he missed out by only one point [ET 21]), and the fact that the pandemic and closure of the office meant that face-to-face interviews were not possible. [EAT 18, 33]

EAT decision on justification

The claimant did not get the job. He did not get the job because of his scoring, which was at least mainly a reflection of how he performed at interview. The ET accepted, said the EAT, that this was something that arose in consequence of his disability, because he went into restrictive mode because of his disability, and his doing so led to him giving lower-scoring answers. There was, thus, the requisite chain of causation between his not getting the job, and his disability. The matter therefore turned on whether the employer could meet the justification test in s.15 EqA. [EAT 16]

The unfavourable treatment was, put shortly, not giving the claimant the job. But what the ET had to consider was whether that was a proportionate means of fulfilling the employer’s legitimate aim, having regard to the process by which the employer reached that decision, and its impact. The EAT said that the claimant was not complaining, as such, that the employer’s approach was to give the two jobs to the two people who scored highest. What was at issue was the underlying method of assessment which resulted in the scores, and whether that was a proportionate means of deciding who to appoint, taking account of the discriminatory impact of that particular method of assessment on the claimant. [EAT 62]

What the ET needed to consider in this case, therefore, was whether an assessment exercise centred on performance in oral questions and answers at a live interview, as opposed to other modes of testing, such as written examination, or online testing, was justified. It was also part of the claimant’s case that, for him, his tendency to adopt restrictive mode in some answers was exacerbated by that live oral interview being conducted by video conference rather than in person, and by there being some warm-up questions before the questions proper began. But, said the EAT, these features were ancillary to the underlying mode of testing being live oral interview. [EAT 63]

It appeared to the EAT that the ET plainly understood all of this, and did engage with it when considering the justification defence. The ET had considered justification of using a live oral interview, as such, having regard to its finding that oral communication was one of the skills needed for the job, and which was being tested. It had also considered the justification for conducting the live oral interviews by the method of video conferencing, in the context of the pandemic. [EAT 64]

That the ET did not specifically, anywhere in this discussion, refer to the fact that there were warm-up questions, did not indicate an error on its part, said the EAT. Firstly, being asked warm-up questions was simply relied on as something exacerbating the impact on the claimant of the oral question and answer format, on account of his disability, and the potential impact of his going into restrictive mode. Secondly, the ET plainly considered the overall interview process and methodology, which was what the single s.15 complaint required it to do. The ET was plainly aware that there were warm-up questions, and was looking at the process as a whole. [EAT 65]

As to whether the ET had taken account of irrelevant factors, the EAT said the ET had properly considered, in context, the degree of discriminatory impact which the method of assessment had on the claimant, and how far it could be said to have been reasonably necessary to adopt the particular methodology. As regards use of video conferencing, the pandemic and its consequences were plainly relevant considerations; and the ET properly took into account that these were business-critical roles that needed to be filled. [EAT 66]

[My comment: below Comment: Justification under s.15.]

Adjustments in the ET hearing

The ET said it made some adjustments for the claimant’s stammer in the hearing. This was not appealed to the EAT. The ET said:

6. As part of the initial discussion with the parties on the first day of this hearing, the tribunal agreed with the claimant that as the claimant sometimes overlooked details due to concentrating on his speech that we would put in place regular breaks to allow the claimant to reflect on the questions he had asked and assess whether there was anything he had missed. In particular, this was done when the claimant indicated that he thought he had finished his cross-examination of a witness. The tribunal at those points took short breaks, and gave the claimant on returning the opportunity to ask any further questions on matters he had not covered.

7. This also extended to giving the claimant the permission to ask a follow up question of [one witness] after [the employer’s representative] had completed re-examination questions. The tribunal considered it only appropriate that the claimant was given as much room and flexibility as possible to allow him to ask the questions that he wanted to ask, so long as they remained relevant to the issues in the case.

My comment below Adjustments to ET hearing.

My comments

Comments: Summary

Lessons from the ET decision include:

  • Making sure the employer knows in advance of the need for particular adjustments in a recruitment process is in any event the best way of trying to make sure they happen in practice. However also from a legal point of view, this case illustrates that someone who does not give full responses because of their stammer may not have the right to reasonable adjustments for it unless they specifically tell the employer. It also is sensible to tell the employer of any particular adjustments the person wants. Below Lesson on telling employer about limited answers.
  • Expert evidence may be needed of the causal link between the stammer and the reason for the unfavourable treatment: below Lesson on getting expert evidence about causal link.

Further comments include;

  • There is a lot of scope for the ET to reach its own decision, for example on whether the employer should reasonably have made enquiries about a disadvantage, based on the facts of the individual case. The EAT decision is not saying that an ET has to reach the same result on broadly similar facts. Below Comment: Limited scope of appeal to EAT.
  • The EAT’s decision that the ET applied the right justification test under s.15 seems odd to me: below Comment: Justification under s.15. Also though, to my mind, an issue not considered in this or really other cases is whether it might have been proportionate under s.15 to take steps to mitigate the claimant’s “restrictive mode”, even though on the reasonable adjustment claim the employer was found not to actual or constructive knowledge: below Knowledge of causal link with disability, under s.15.
  • Even if it was justified to assess/score oral skills (and if that was actually being done), it could have been done in ways other than a standard interview: below Comment on s.15: Oral communication abilities. Further, his oral difficulties in answering fully will also have artificially reduced his scores for other competencies which could perhaps have been tested in other ways, such as in writing or through his previous performance: below Comment on s.15: Technical and other non-oral abilities.

Comment: Rare decision

EAT decisions on stammering are very rare. Others I’m aware of are Garcia v The Leadership Factor, 2022, and HM Land Registry v Wakefield, 2008, where again the claims were unsuccessful. There have been, though, various claims on stammering that were successful at ET level, and were not appealed: Cases on stammering.

Comment: Limited scope of appeal to EAT

To a large extent, the issues in this case were matters of fact or evaluation, which are largely for the ET to decide. The EAT can only overrule an ET decision on the basis of an error of law, or that the ET’s findings were perverse (which is a high bar).

Subject to that, what knowledge the employer could reasonably be expected to have of the disadvantage (including whether the employer should reasonably have made enquiries), and whether the lower score or not giving the claimant one of the posts was a proportionate means of achieving a legitimate aim, were matters for the ET, not the EAT.

So there is a lot of scope for the ET to reach its own decision, based on the facts of the individual case. This EAT decision is not saying an ET has to reach the same result on broadly similar facts.

Comment: Lesson on telling employer about limited answers

Making sure the employer knows in advance of the need for particular adjustments in a recruitment process is in any event the best way of trying to make sure they happen in practice: Should I tell the employer I stammer?>Consequences of not telling employer in advance. A second-best option is to tell the employer during the interview.

A lesson from this EAT decision is that also from a legal point of view, a candidate who because of their stammer tends not to give full responses – or otherwise not to give the answers they really want – may not have a right to reasonable adjustments for this unless they have told the employer this happens because of their stammer: see Should I tell the employer I stammer?>Consider telling the employer what the ‘substantial disadvantage’ is.

If the employer has not been told in advance, a second-best option is, if the person who stammers finds their performance in the interview is really being affected, to tell the interviewers then. The interview might perhaps be paused or adjourned to discuss what adjustments could be made, as suggested by the ET in Y v Calderdale Council. The claimant in the Glasson case had thoughts of terminating the interview, but decided to continue. [ET 10, EAT 7]. See Should I tell the employer I stammer?>Or consider explaining disadvantage in the actual interview, if it is getting in the way.

It is also sensible for the candidate to suggest any particular adjustments they would like, to mitigate the disadvantage, and/or offer to discuss what adjustments would be appropriate. If there’s something you’d like done, don’t just hope the employer thinks of it.

I deal with giving limited responses, and possible adjustments for it, at Examples of reasonable adjustments: Recruitment>Oral interview: Limited responses.

The employer in this case knew of the stammer, but the claimant had not told them of this disadvantage, the “restrictive mode”. The ET, upheld by the EAT, found that the employer did not actually know of that disadvantage, nor could it reasonably have been expected to know. It is this second point, known as “constructive knowledge”, which was the main issue in the case. The issue was essentially whether it would have been reasonable for the employer to make enquiries, ie to check with the claimant whether his giving less full answers was related to the stammer. This is mainly a question for the ET to decide. The EAT held that the ET had properly considered the relevant issues, and was entitled to reach the decision it did. In particular, the ET was entitled to decide there was not enough to reasonably put the employer “on notice” of the stammer being the reason why the claimant was limiting his answers, such that the employer should have asked him about it.

An employer who knows of a stammer might be expected to know that the person may need more time. However, it may not be evident to listeners that a stammer is affecting what answers the person gives, even though it is common for people who stammer to restrict (or alter) what they say: Hiding the stammer. An ET reached a somewhat similar conclusion to the present case in Y v West Yorkshire Combined Authority, 2020. There it decided the employer did not know, and could not reasonably be expected to know, that the claimant who stammers might limit the content of an oral presentation. The outcome should depend on the facts and evidence in each particular case. In Y v Calderdale Council, where the stammer was severe, the ET found the disadvantage was obvious to the employer: see below Indications of struggle may sometimes give employer constructive knowledge. However – on the record of decisions so far – often an ET may well decide that the employer could not reasonably be expected to know that a stammer (of which the employer was aware) was restricting the job applicant’s answers. The West Yorkshire and Calderdale cases (plus Glasson) are covered on Knowledge of disability>Stammering cases: knowledge of disadvantage (limited responses).

For the legal background, see above Reasonable adjustments.

Comment: Indications of struggle may sometimes give employer constructive knowledge

The ET in this case does not discuss whether there were any significant indications of struggle in how the claimant spoke in the interview, which might alert a reasonable employer that he may well be limiting his answers. It might be argued in a suitable case that indications of struggle were sufficient to put the employer on notice of this disadvantage.

The EAT decision in Ridout v TC Group was cited but distinguished by an employment tribunal in Y v Calderdale Council, based on the lack of indications of struggle in the EAT case. The Calderdale tribunal said the claimant in Ridout, who had a rare form of epilepsy, gave little or no indication in her interview that she was “struggling” because of lighting in the room. The EAT in Ridout upheld a tribunal decision that the employer did not have constructive knowledge of her disadvantage. By contrast, in Calderdale the tribunal said it was obvious to the interviewers that the claimant was under a substantial disadvantage in the interview session, due to his severe stammer. The council did allow more time, but even so, the amount of information he was able to convey compared to other candidates was much reduced. In Calderdale the claimant won his claim for reasonable adjustments.

(The ET in Glasson does say at para 9 that the claimant – on his own evidence which the ET accepted – “struggled to give full answers”. However, it is not clear how far this “struggle” would be apparent to listeners.)

Comment: Justification under s.15

Overview, and justifying rejection rather than the process

Legally, it is the unfavourable treatment – rejecting the claimant for a job – that must be justified under s.15 EqA (above Justification under s.15 EqA>Legal background). It is that treatment of the claimant that must be a proportionate means of achieving a legitimate aim. This contrasts with indirect discrimination (s.19 EqA), where it would be the recruitment system adopted by employer (the “provision, criterion or practice”, or PCP) – namely oral interviews by video conferencing – that needs to be justified: Group test for objective justification of indirect discrimination?

It seemed to me that the ET in the present case went wrong in law by considering, in a s.15 claim, whether the employer’s general system of choosing between job applicants was justified. For example, the ET says at para 24: “The tribunal concludes that this measure adopted, that being using video conferencing to conduct interviews …, was with a view toward achieving the legitimate aim of having a fair and proportionate recruitment process for filling any vacancies. And that it was appropriate to achieve that aim…”

However, the EAT rejected this ground of appeal. The EAT appears to have decided that in this case, considering whether the general method of assessing candidates was justified was effectively the same as considering whether rejecting the claimant was justified, and that the ET had properly considered all the issues.

I find the EAT’s conclusion doubtful and rather unclear, but that is what has been decided. The following are some comments on both the EAT and ET decisions. Also I should stress at the outset that, for example, the courts accept it is important under s.15 whether it would have been proportionate to take steps specifically in respect of the claimant to mitigate the discriminatory impact, so it is not normally just the employer’s general procedures that the courts assess under s.15: below Comment: Knowledge of causal link with disability, under s.15.

  • The most obvious way in which I think the ET failed to apply the right test is that it took into account that the numbers affected by the employer’s decision to hold interviews by video from a disability discrimination perspective were small: below Comments on s.15: Numbers involved.
  • I also find it extraordinary that the ET should have considered the discriminatory impact on the claimant to be low. The impact was that he did not get the job, rather than just losing out on one point: below Comment on s.15: Impact on the claimant.
  • I don’t understand the EAT’s decision that the ET adequately considered how the warm-up questions were justified. The claimant said these exacerbated the impact on him, but the ET did not specifically consider this. Below: Comment on s.15: Warm-up questions.
  • An issue that does not seem to have been argued is whether it might have been proportionate under s.15 for the employer to take steps to mitigate the claimant’s “restrictive mode”, even though on the reasonable adjustment claim the employer was found not to actual or constructive knowledge: below Comment: Knowledge of causal link with disability, under s.15.
  • The ET said the oral interview was needed to assess oral skills. I would say this statement is far too sweeping and broad brush: below Comment on s.15: Oral communication abilities.
  • Also the ET did not take into account that the claimant’s scores on non-oral abilities were presumably (unnecessarily) pulled down by the mode of assessment being oral: below Comment on s.15: Technical and other non-oral abilities.

Comment on s.15: Numbers involved

In para 20, while assessing justification under s.15, the ET said the numbers affected by the employer’s decision to hold interviews by video from a disability discrimination perspective were small.

This is the most obvious way in which I think the ET wrongly assessed whether the general system of oral video interviews was justified, rather than whether the unfavourable treatment of the claimant (ie rejecting him) was justified: Overview…, above. In the EAT, the claimant’s lawyer criticised the ET for having taken this number of people affected into account [EAT 18]. However, the EAT does not seem to have addressed the issue.

The number of people affected seems irrelevant in a claim under s.15 EqA, where the question is whether rejecting this claimant for the job was proportionate. The ET may well have been thinking of the group test applied to the justification defence in indirect discrimination, under s.19 – though I’m not sure this point should have much weight even there.

Under s.15, the ET should balance the employer’s aim against the impact on the claimant (below). See for example the Supreme Court decision in Akerman-Livingstone v Aster Communities discussed at Objective justification defence>Four-stage structured approach.

The EAT evidently disagreed though, albeit without addressing this point.

Comment on s.15: Impact on the claimant

The discriminatory effect on the claimant has to be weighed in the balance in deciding whether the unfavourable treatment was justified: Objective justification>Balancing exercise.

Para 21 of the ET decision says the impact on the claimant of holding interviews by video conferencing was quite low, when qualitatively assessed. For example he only missed out on one of the two available roles by one point, and scored joint highest in at least one category.

I find this para 21 pretty amazing. The ET was right to weigh in the balance the discriminatory effect on the claimant. However surely the most important effect here was that he did not get the job. This is a major effect. The fact that he missed out on a job by only one point serves to heighten this effect, in that with only a small change in the employer’s approach it seems likely he would have got the job. It might well have made all the difference.

Also, even if one does measure the effect on the claimant in terms of the number of marks he scored and his ability to engage with the process and answer questions (para 21), there appears to be no evidence to support the ET’s conclusion of a low effect – because we do not know how well the claimant would have done if the process had been different. If the issues of being unable to say what he really wanted had not lowered his marks, for all we know he might have scored way ahead of other candidates. One can’t decide the effect on the claimant just by saying, as the ET seems to, that he did relatively well. (Although on a different legal issue, compare: “Substantial” effect>Effect on the individual – highly able people.)

The ET’s approach seems odd even if assessing the effect of the video interview on the claimant. However the approach seems even more odd given that it is the unfavourable treatment, including not getting the job, that has to be justified.

Comment on s.15: Warm-up questions

I don’t understand at all the EAT’s decision [EAT 65] on how it thought the ET found the warm-up questions were justified. The claimant said these exacerbated the impact on him, but the ET did not specifically consider this.

It is well known that in looking at whether unfavourable treatment is proportionate, it is important whether the employer’s aim can be achieved by alternative, less discriminatory means, including but not limited to possible reasonable adjustments (Objective justifications defence>Balancing exercise). If the ET did decide it was not proportionate to do away with the warm-up questions – either for the claimant or generally – surely it should (and would) have said why.

This links up though with a wider issue not considered by the EAT (it seems not to have been argued). The disadvantage posed by the warm-up questions was evidently that it contributed to the claimant going into restrictive mode, a disadvantage of which the employer was not aware. There is therefore the question how far this lack of knowledge is relevant under s.15: below Comment: Knowledge of causal link with disability, under s.15.

As mentioned above, it is well known that in looking at whether unfavourable treatment is proportionate, it is important whether the aim can be achieved by alternative, less discriminatory means, including but not limited to possible reasonable adjustments (Objective justifications defence>Balancing exercise). This is an important reason why, on a s.15 claim, it is not generally enough (as one might think from the EAT decision here) to just assess whether the general recruitment system adopted by the employer is justified. There is the question whether it would have been proportionate to make any changes, in the claimant’s case if not generally, to minimise any discriminatory impact on the claimant.

Furthermore, there is authority – particularly the Court of Appeal decision in Grosset – that the question whether the unfavourable treatment was justified under s.15 has to be assessed objectively by the tribunal, not according to what information the employer had: Knowledge of causal link with disability under s.15 EqA>Justification defence: the new battleground? The employer in the Glasson case had a defence to the reasonable adjustment claim under s.20, as it was found not to have actual or constructive knowledge of the “restrictive mode”. But is that lack of knowledge relevant in assessing justification under s.15, and if so how far?

The EAT did not address this issue, and it does not seem to have been argued. If under s.15 the employer did not need actual or constructive knowledge, it might be argued that it would have been proportionate for the employer to take steps to address the claimant’s restrictive mode, such as an opportunity to supplement his oral answers in writing (Examples of reasonable adjustments: Recruitment>Oral interview: Limited responses), and/or for him not to have the warm-up questions which he found counter-productive.

I doubt that the courts will end up with a position where claimants can use s.15 to totally circumvent the lack of knowledge defence which applies in a s.20 reasonable adjustment claim. However the courts will need to establish the borderlines.

The Court of Appeal did say in Grosset that if the employer knows there is a disability “he would be wise to look into the matter more carefully before taking unfavourable action”: Knowledge of causal link with disability under s.15 EqA. The employer here knew of the disability and that the claimant had missed out on a job – or at least a tie-break – by only one point. The courts might hold that at least under s.15, the employer had not been curious enough.

Comment on s.15: Oral communication abilities

The ET said the role included oral communication, which was one of the skills being tested, and the ET could not see how any alternative approach adopted would been better. [ET 25]

Firstly, however, candidates were selected based on their scores, and the ET does not say whether oral skills were one of the things being scored, and if so how. If oral skills were not being scored in the system used to select successful candidates, the ET’s statement that these were being tested seems at the very least problematic.

Secondly, there is only limited discussion by the ET of possible alternative means to assess the claimant’s oral abilities (so far as required for the job) which would have a less discriminatory impact on him: above Comment: Knowledge of causal link with disability, under s.15. This is probably because, as the ET said, no reasonable alternative approach had been presented to the ET.

For my comments generally on assessing oral skills, see Oral assessments in recruitment. If particular oral skills are sufficiently important in the job (after reasonable adjustments) for assessing them to be justified, what matters is how the person performs in the workplace. An interview is not a reliable way to test workplace oral skills of someone who stammers (though it may require expert evidence to persuade a tribunal of that). In the present case, I would argue the employer may well have been able to get sufficient information on the claimant’s communication skills from his existing managers, who would know how he was in the workplace. The ET described his performance as at a “high level”. If the new role required communication skills not demonstrated in previous jobs, there might be a specific skills test for oral communication reflecting as closely as possible the work situation after reasonable adjustments, or perhaps a work trial/probationary period.

These points seem not to have been argued.

Comment on s.15: Technical and other non-oral abilities

Also, it sounds like a particular problem with the assessment method adopted by the employer was that the claimant’s difficulties in giving full answers pulled down his scores for things other than oral communication. Objectively, the scores for non-oral abilities, and so whether he got the job, were not based just on those non-oral abilities.

The ET said in para 25 that any alternative approach would have needed some oral communication aspect to it, because oral skills had to be tested. But even if oral skills (above) were one thing being assessed, that disregards the possibility of using means other than a video interview to assess those skills which could be assessed another way, for example in writing (or at least partly in writing), or from his previous performance with the employer, so that those marks would not be affected by the stammer at the interview.

Comment: Lesson on getting expert evidence about causal link under s.15

The ET did accept that it was the stammer that led to the claimant giving answers that were not full enough: below ET: S.15: Causal link with the disability. But the ET did so reluctantly, despite the claimant having given “clear and consistent evidence of the impact that his stammer has on him, [which] was both compelling and persuasive evidence”, and his evidence being consistent with feedback of interviewers. The ET said there was some supporting evidence: a “Speech and Language Therapy Report”, a “STAMMA Report” (general rather than relating specifically to the claimant), and a “stammering assessment report”. However, the supporting evidence was “somewhat limited”, and the ET would have benefitted from “more directed evidence on the impact that the claimant’s stammer has on him and the effects of it” [ET 18].

I think a lesson from this is that unless perhaps the causal link with the stammer is obvious to people generally – such as where it is evident to a listener – it may well be a good idea to get cogent expert evidence (specific to oneself) to support one’s argument that the reason for the unfavourable treatment was causally linked to one’s stammer. This would probably be evidence of a speech and language therapist, who would for example support the claimant’s assertion that particularly in an interview situation this claimant was liable to limit (or whatever) their answers because of their stammer, not saying what they really want to say, and make clear that this is a common effect of stammering. See the expert report in the Wakefield case.

The causal link will often seem obvious to someone who knows about stammering, but may not be obvious to an ET.

Comment on s.15: What was the unfavourable treatment?

There is a claim under s.15 EqA if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim (commonly known as “justification”).

The EAT seems to have gone on the basis that his not getting the job was the unfavourable treatment [EAT 61-62].

There is some inconsistency in the ET decision as to whether the unfavourable treatment was not getting the job (ET 10 issues 1-3) or the lower score (ET 16), or quite possibly both. But I don’t think it matters. Either:

There can be no dispute that not giving him the job was unfavourable treatment. Also the employer and ET accepted that the lower score was unfavourable treatment [ET 16], though that might perhaps be different if it had not led to him being turned down for the job.

Comments: Adjustments to ET hearing

It is interesting to see the adjustments made by the ET to the hearing (above) to accommodate the stammer.

Judges have an obligation to make adjustments for disability so that hearings are conducted fairly: Appearing in court – as a defendant/litigant, witness or in jury service. This is separate from the EqA.

Technical note: More detail on employment tribunal (ET) decision

ET: Reasonable adjustments

The legal test for the reasonable adjustment duty is summarised above: Reasonable adjustments>Legal background. The employer has a defence if it did not have actual or constructive knowledge of the disability, and of the disadvantage at which the employer’s practice etc (PCP) put the claimant.

The employer here knew of the disability. However did the employer know of the disadvantage (actual knowledge)? If not, could the employer be reasonably expected to know of the disadvantage (constructive knowledge)? The ET seems to have gone on the basis that knowing he was at a (more than minor or trivial) disadvantage compared with non-disabled people here essentially involved knowing that his stammer was the reason why he did not give full enough answers.

The ET concluded that the employer “did not have knowledge, either actual or constructive, of the disadvantage that the selection/interview process was putting the claimant at, due to his disability” [ET 13, my emphasis]. The ET said the claimant did not tell anybody at the employer either before or during the interview process, nor anybody on the panel, about this impact of his stammer, or why he was not able to provide fuller answers. He simply assumed that the interviewers knew [ET 11]. The claimant was working to a high standard in his role, he had been interviewed through a video conferencing format previously and raised no concerns, he raised no concerns in advance of his interview for Deputy Official Receiver either on his application form or elsewhere, and he provided answers in the interview which were reasonably competent, albeit not as detailed as the panel expected [ET 13].

[My comments above: Lesson on telling employer about limited answers.]

ET: Reasonable adjustments: PCPs, and adjustments sought

The ET said the “PCPs” (provisions, criteria or practices) which the claimant argued had put him at a substantial disadvantage were (ET para 10 issue 5):

  • PCP1: Holding interviews by video conferencing
  • PCP2: Emphasising oral answers and performance in interview over written answers and an assessment of technical skills when scoring candidates or selecting them for appointment
  • PCP3: Having warm-up questions as part of the interview.

The adjustments which the claimant argued should reasonably have been made were (ET para 10 issue 8):

  • On PCP1: not requiring the claimant to attend the interview by videoconferencing
  • On PCP2: increasing the weight given to written answers and an assessment of technical skills when scoring candidates or selecting them for appointment
  • On PCP3: not asking the claimant warm-up questions or giving him the option whether to be asked such questions.

As discussed above, the reasonable adjustment claim failed because the ET found the employer did not have actual or constructive knowledge of the disadvantage at which the PCPs (allegedly) put the claimant.

ET: Discrimination arising from disability (s.15 EqA)

The legal test for s.15 is summarised above: Justification under s.15>Legal background.

ET: S.15: Unfavourable treatment

The employer and the ET accepted that receiving lower scores in the interview process was unfavourable treatment [ET 16].

[My comments above Comment on s.15: What was the unfavourable treatment?]

ET: S.15: Causal link with the disability

Was the unfavourable treatment for something arising in consequence of the claimant’s disability? The ET held yes it was [ET 16-18]:

  • The mechanisms employed by the claimant to help him manage his impairment included “avoiding particular words or phrases, trying to avoid blocks and increasing concentration on the words that he is using. These coping strategies make it difficult for the claimant to provide a full and focused answer to any questions being asked of him in his interview for the role of Deputy Official Receiver. The answers he provided led to lower scores being awarded to him during the video interview for the role.”
  • The claimant’s evidence on this was clear, consistent, compelling and persuasive. It was consistent with feedback from the interview panel expecting the claimant to have been able to provide fuller answers.
  • It was also substantially consistent with a Speech and Language Therapy Report, a STAMMA Report (although this was general rather than relating specifically to the claimant), and a stammering assessment report. The ET said this supporting evidence was “somewhat limited, and the tribunal would have benefitted from more directed evidence on the impact that the claimant’s stammer has on him and the effects of it.”
  • Even so the ET concluded that, on balance, the evidence satisfied the burden of proof required to establish a causal connection between the disability and the something arising in consequence of it.

[My comments above Comment: Lesson on getting expert evidence about causal link under s.15.]

S.15: Objective justification

Since the claimant had been subject to unfavourable treatment for something arising out of his disability, the ET “needed to assess whether the approach adopted” by the employer was objectively justified, ie a proportionate means of achieving a legitimate aim. [ET 19]

  • The employer argued the legitimate aim was having a fair and proportionate recruitment process for filling any vacancies (para 10, item 4).
  • The ET said the numbers affected by the decision to hold interviews by video from a disability discrimination perspective were small. The only complaint was from the claimant. Also there were no complaints, including from the claimant, in relation to an earlier round of video conference interviewing [ET 20]. [My comments above Numbers involved.]
  • The ET said the impact on the claimant of holding interviews by video conferencing was quite low, when qualitatively assessed. “The claimant was able to engage with the process for the most part, and answered questions asked of him. He scored relatively high in the process. He passed the interview, and only missed out on one of the two available roles by one point. He scored joint highest in at least one category. With all this in mind, the measure adopted had a low discriminatory affect [sic]. The ET reminded itself that the [employer’s] justification is to be assessed with proportionality to the seriousness of the discriminatory treatment in mind” (ET 21). [My comments above Impact on the claimant.]
  • The process was held during a pandemic when the employer’s offices were closed. Face-to-face interviews could not be conducted. However the role of Deputy Official Receiver was a business-critical one that needed to be filled. The measure adopted must be considered in that context. [ET 22]
  • The employer had decided to use “a standard interview process but over video conferencing”. The ET concluded that this measure – namely using video conferencing to conduct the interviews – was “with a view toward achieving the legitimate aim of having a fair and proportionate recruitment process for filling any vacancies”. It was appropriate to achieve that aim, enabling assessment of candidates against the required competencies for the role. “Each candidate, including the claimant, was able to provide answers to questions posed and were assessed against these competencies.” [ET 23-24]
  • The ET continued “No reasonable alternative approach that was capable of achieving the legitimate aim but with a less discriminatory impact has been presented before the tribunal. Nor, could the tribunal identify one. The role itself included oral communication. This was one of the skills needed, and was one of the skills being tested during the process. The approach adopted was appropriate to test the required skills, including oral communication. Any alternative approach would have had to include some oral communication aspect to it, which would inevitably include the claimant having to consider situations and provide some explanation and expansion to the situation presented. And therefore it is difficult to envisage how an alternative approach could have been adopted, given the circumstances of the pandemic and the inability to hold face-to-face interviews, that would have remained appropriate to achieve the legitimate aim whilst having less of a discriminatory impact. Removing the oral aspect would be one way of reducing the discriminatory impact, however, this would not be deemed appropriate to achieve the legitimate aim, given the need to test oral communication skills.” [ET 25]

Balancing all the factors in this case, the measure adopted was a proportionate means of achieving a legitimate aim. Therefore the s.15 claim failed. [ET 26-27]

[My comments above Comment: Justification under s.15.]

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