The claimant had a stammer. In September 2020 he was turned down for a promotion with his existing employer, who knew of his stammer. The interview was by video due to Covid-19. He argued that reasonable adjustments should have been made, because his interview answers were not full enough due to his stammer. Feedback from the panel itself was that some of his answers were not fully expressed. The tribunal rejected his claim for adjustments because it found the employer did not have actual or constructive knowledge of the disadvantage, ie that he was limiting his answers due to his stammer. The tribunal also rejected his claim for discrimination arising from disability (s.15 EqA) since the employer had shown that holding video interviews was justified, given the Covid-19 pandemic. This tribunal decision is under appeal to the EAT. My comments are below.
2022, Employment Tribunal. Full tribunal decision (gov.uk).
The claimant had worked for the employer for a number of 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” .
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. [4-5]
The claimant then applied for a permanent role as Deputy Official Receiver (it was this job application that led to the tribunal claim). He requested reasonable adjustments in the application form, saying “I have a stammer and may require longer to answer questions in the interview”. [6-7]
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. [8-9]
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.” 
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. 
The two available posts were offered to the candidates that were placed first and second in the process. The claimant came third, only one point behind the second successful candidate. 
He claimed for failure to make reasonable adjustments (s.20 EqA) and discrimination arising from disability (s.15 EqA).
Held: His claims failed. As regards reasonable adjustments, the tribunal found the employer did not have actual or constructive knowledge of the disadvantage. As regards his s.15 claim, holding interviews by video conference was justified in the circumstances.
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 with persons who are not disabled, 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.
The employer here knew of the disability. However did it know of the disadvantage (actual knowledge)? If not, could it be reasonably expected to know of the disadvantage (constructive knowledge)? The tribunal 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 tribunal 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” [13, my emphasis]. The tribunal 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 . 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 .
Reasonable adjustments: PCPs, and adjustments sought
The tribunal said the “PCPs” which the claimant argued had put him at a substantial disadvantage were (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 (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 tribunal found the employer did not have actual or constructive knowledge of the disadvantage at which the PCPs (allegedly) put the claimant.
Discrimination arising from disability (s.15 EqA)
Discrimination arising from disability 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.
S.15: Unfavourable treatment
The employer and the tribunal accepted that receiving lower scores in the interview process was unfavourable treatment .
My comments below What was the unfavourable treatment?
S.15: Causal link with the disability
Was the unfavourable treatment for something arising in consequence of the claimant’s disability? The tribunal held yes it was [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 tribunal 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 tribunal 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 below Lesson on getting expert evidence about causal link.
S.15: Objective justification
Since the claimant had been subject to unfavourable treatment for something arising out of his disability, the tribunal “needed to assess whether the approach adopted” by the employer was objectively justified, ie a proportionate means of achieving a legitimate aim. 
- The employer argued the legitimate aim was having a fair and proportionate recruitment process for filling any vacancies (para 10, item 4). My comments below Legitimate aim.
- The tribunal 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 . My comments below Numbers involved.
- The tribunal 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 tribunal reminded itself that the [employer’s] justification is to be assessed with proportionality to the seriousness of the discriminatory treatment in mind” (para 21). My comments below 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. 
- The employer had decided to use “a standard interview process but over video conferencing”. The tribunal 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.” [23-24]
- The tribunal 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.” 
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. [26-27]
My comments below Issue should not have been whether video interview was justified and Alternative ways of assessing.
Adjustment to the hearing
The tribunal said it made some adjustments for the claimant’s stammer in the hearing;
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 Adjustment to hearing.
The claimant has appealed this Employment Tribunal decision to the Employment Appeal Tribunal (EAT).
Lessons from the tribunal decision include:
- A candidate who tends not to give full responses because of their stammer should be aware that they may not have the right to reasonable adjustments for this unless they have made sure the employer knows of it: 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.
Ways in which the decision might be criticised include;
- On the reasonable adjustment claim, the tribunal’s conclusion that the employer did not have constructive knowledge of the likelihood of the substantial disadvantage could be criticised – for example given that the employer knew the claimant had a stammer and had given less full answers than expected , and that the employer was supposed to make reasonable enquiries. However on the practical point of trying to make sure the employer knows, see below Lesson on telling employer about limited answers.
- On the s.15 claim, the tribunal wrongly focused on whether interviews by video were justified, not on whether the unfavourable treatment (eg being rejected for the job) was justified: below Issue should not have been whether video interview was justified. For the same reason the legitimate aim (below) adopted does not seem to work, and it should not have mattered that the numbers involved (below) were small.
- In weighing the discriminatory effect on the claimant under s.15, the tribunal says the impact on him was quite low: for example he was only one point below someone who got the job. The tribunal does not acknowledge the major impact on him of not getting the job: below Impact on claimant.
- Even if oral skills were being assessed/scored and if that was justified, it could potentially have been done in ways other than a standard interview. 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: Alternative ways of assessment.
Comments: Lesson on telling employer about limited answers
A lesson from this decision is that a candidate who tends not to give full responses (or otherwise not to give the answers they really want) because of their stammer should be aware that they may not have a right to reasonable adjustments for this unless they have made sure the employer knows they do this because of their stammer.
An employer who knows of a stammer might be expected to know the person may need more time. However it may not be evident to people that a stammer is affecting what answers the person gives. In the present case there was an evident effect of the stammer, namely giving less full answers. But the question arose (though the tribunal did not expressly pose it) whether – with any reasonable enquiries the employer should have made – the employer should have known that this was due to the stammer. The tribunal in this case (rightly or wrongly) seems to have assumed that knowing of the stammer and that the claimant’s answers were too limited did not put the employer on notice to ask him about it.
A tribunal reached a somewhat similar conclusion to the present case in Y v West Yorkshire Combined Authority, 2020. It decided the employer did not know and could not reasonably be expected to know the claimant who stammers might limit the content of an oral presentation. In any particular case the outcome should depend on the facts and evidence: in Y v Calderdale Council, where the stammer was severe, the tribunal found the disadvantage was obvious to the employer. However – on the record of tribunal decisions so far – often, even if the employer knows of the stammer, a tribunal may decide that the employer could not reasonably be expected to know it was restricting the job applicant’s answers. See Should I tell the employer I stammer?>Consider telling the employer what the ‘substantial disadvantage’ is, which includes the West Yorkshire and Calderdale cases above. It will probably also be sensible for the candidate to suggest any particular adjustments they would like to deal with the issue.
The tribunal in this case does not discuss whether there were any indications from how the claimant spoke in the interview that he might be struggling to express himself, but concentrates on the fact that the claimant did not raise the issue with the employer either before or at the interview.
I deal with giving limited responses and possible adjustments for it at Examples of reasonable adjustments: Recruitment>Oral interview: Limited responses.
For the legal background, see above Reasonable adjustments.
Comments: Lesson on getting expert evidence about causal link
The tribunal did accept that it was the stammer that led to the claimant giving answers that were not full enough: above S.15: Causal link with the disability. But the tribunal 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”. There was some external evidence (the tribunal did not describe what it said), but the tribunal stated that it would have preferred to have “more directed evidence on the impact that the claimant’s stammer has on him and the effects of it” .
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 be a good idea to get 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 employment tribunal.
Comments on s.15: Issue should not have been whether video interview was justified
The tribunal seems to have considered the wrong legal question as regards justification.
The tribunal correctly appears to say at para 10 issue 4 that the question is whether the unfavourable treatment was a proportionate means of achieving a legitimate aim. The unfavourable treatment was not giving him the job and/or the lower score: below Comments on s.15: What was the unfavourable treatment?
However the tribunal does not actually consider that question. From para 20 onwards the tribunal considers instead whether using video conferencing was a proportionate means of achieving a legitimate aim. This is most obvious in para 24 which says “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…”. Paragraphs 20 and 21 of the tribunal decision also focus on holding interviews by video. Also it is this “measure adopted” (defined in para 24 as “using video conferencing to conduct interviews for the role of Deputy Official Receiver”) that the tribunal concludes in para 26 is a proportionate means of achieving a legitimate aim.
What the tribunal seems to have done is apply the justification test for indirect discrimination (s.19), rather than the test for s.15. In an indirect discrimination claim it is the provision, criterion or practice (PCP) that has to be justified: Group test for objective justification of indirect discrimination? In a s.15 claim, however, the question is whether the unfavourable treatment of the claimant was justified.
This s.19-based approach seems also to explain the tribunal’s apparent errors:
- as to what is a “legitimate aim”, below Legitimate aim, and
- of taking into account how many people were disadvantaged by the PCP of having video interviews, below Numbers involved.
It also worth noting that the tribunal seems to have considered only whether ‘PCP1’ (video conferencing) was justified, not the other PCPs (above) put forward in the reasonable adjustment claim. For example PCP2 was emphasising oral answers and performance in interview over written answers and an assessment of technical skills when scoring candidates or selecting them for appointment.
By way of comment rather than criticism, on video conferencing the tribunal seems impliedly to assume that the claimant found a video conference more difficult with his stammer than a face-to-face interview (which the pandemic made impossible). This is not uncommon. See Examples of reasonable adjustments: Recruitment>Telephone or video interviews.
Comments on s.15: Legitimate aim
The employer argued that its legitimate aim was having a fair and proportionate recruitment process for filling any vacancies. However this does not really seem to be an “aim” of turning the claimant down for the job. A legitimate aim might be, for example, appointing the candidates most competent for the job, or running an effective insolvency service.
I imagine the tribunal accepted this aim because it was wrongly assessing whether video interviews were justified (above). Having a fair and proportionate recruitment process might be a legitimate aim of using video interviews.
Comments on s.15: Numbers involved
In para 20 the tribunal said the numbers affected by the decision to hold interviews by video from a disability discrimination perspective were small. I suggest this is not relevant to a claim under s.15 EqA, where the question is whether the unfavourable treatment of the claimant was proportionate.
The tribunal’s approach was probably a result of it wrongly considering whether the use of a video interview was justified (above). The tribunal may have been thinking of the group test applied to the justification defence in indirect discrimination cases, though I’m not sure this point should have much weight even there.
The tribunal 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.
Comments 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 tribunal decision says the impact on the claimant of holding interviews by video conferencing is 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 paragraph 21 pretty amazing. The tribunal 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 tribunal’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 been way ahead of other candidates. One can’t decide the effect on the claimant just by saying, as the tribunal seems to, that he did relatively well.
The tribunal’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.
Comments on s.15: Alternative ways of assessing
The tribunal said that no reasonable alternative approach capable of achieving the legitimate aim but with a less discriminatory impact had been presented before the tribunal. It rejected an approach with no oral element, because it said the employer had to test oral skills . I make some comments below about the method of assessing, but this is all subject to the point that ultimately what the employer has to justify under s.15 is not its process but its decision not to employ the claimant: above: Issue should not have been whether video interview was justified.
Oral communication abilities
The tribunal said the oral interview was needed to assess oral skills. It does say how or whether oral skills were being scored. Since the successful candidates were decided by formal scores, the tribunal’s statement seems problematic if oral skills were not being formally scored.
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 tribunal 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.
The claimant seems not to have argued these points.
Technical and other non-oral abilities
It sounds like a particular problem with the assessment method adopted was that the claimant’s difficulties in giving full answers pulled down his scores for things other than oral communication. Objectively the scores, and so whether he got the job, were not based on his competencies, or at least not on the competencies the employer was seeking to assess.
The tribunal says 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 those marks would not be affected by the stammer at the interview.
Also the tribunal said that no reasonable alternative approach capable of achieving the legitimate aim but with a less discriminatory impact had been presented before the tribunal. However one measure the claimant evidently did propose (as a reasonable adjustment, above) was increasing the weight given to written answers and an assessment of technical skills when scoring candidates or selecting them for appointment. The tribunal did not discuss this. What exactly the claimant was suggesting is not clear from the tribunal decision.
Relevance of knowledge of causal link with disability under s.15
The employer might argue (as it did for reasonable adjustments) that because it did not know the restricted responses were due to his stammer, it could not have known to assess non-oral abilities in writing, for example. However:
- It is not the method of assessment that has to be justified but the unfavourable treatment, here the failure to appoint the claimant: above Issue should not have been whether video interview was justified. Also there is authority that the question whether the unfavourable treatment was justified 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? For example in Grosset (see that link) the employment tribunal was entitled to take into account medical evidence the employer did not have. Consistent with this approach, the EAT has also said that in showing justification it is the outcome rather than the procedure that has to be justified, though the procedure can be relevant: Objective justification defence>Outcome vs process?
(There are uncertainties on Grosset and the justification defence, including how they interact with the ‘lack of knowledge’ defence to the reasonable adjustment duty. The uncertainties will presumably be clarified by the appeal courts at some stage. See Knowledge of causal link with disability under s.15 EqA>Justification defence: the new battleground?)
- Even if it were relevant in some way, for justification under s.15, that the employer could not reasonably be expected to know the unfavourable treatment was unfair, it might be argued that the employer here should have been more curious, at least after the employer saw the assessment results. This is especially so in the light of the Court of Appeal’s statement 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.
- Quite apart from any argument on Grosset, in considering the reasonable adjustment claims the tribunal in this case only considered the employer’s knowledge up to and including the time of the video interview. For the justification defence under s.15, knowledge acquired by the employer following the interview, at least up until the successful candidates were notified, might be relevant – if knowledge is relevant at all. Knowledge acquired after the interview might also be relevant to, say, a claim for reasonable adjustment of the PCP of appointing the two candidates with the highest scores, which seems not to have been argued.
Comments 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’).
There is some inconsistency in the tribunal decision as to whether the unfavourable treatment was not getting the job (para 10 issues 1-3) or the lower score (para 16), or quite possibly both. But I don’t think it matters. Either:
- the unfavourable treatment was the lower score, and was because of his not giving full answers which was something arising in consequence of the disability (above Causal link with the disability), and/or
- the unfavourable treatment was not giving him the job, and was because of the lower score which was something arising (slightly less directly) in consequence of the disability. There can be a chain of causal links: see Discrimination arising from disability>Something arising “in consequence of” the disability.
There can be no dispute that not giving him the job was unfavourable treatment. Also the employer and tribunal accepted that the lower score was unfavourable treatment , though that might perhaps be different if it had not led to him being turned down for the job.
Comments: Adjustment to hearing
It is interesting to see the adjustments made by the tribunal 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 Equality Act.