The Employment Appeal Tribunal (EAT) upheld a tribunal decision requiring a claimant who stammers to pay a deposit as a condition of proceeding with his EqA claims. He was claiming direct and indirect disability discrimination in relation to requirements that telephone interviewers have a “clear voice” and be in “good health”. The EAT held the tribunal was entitled to find these claims had little reasonable prospect of success. My comments below.
2022, Employment Appeal Tribunal (EAT). Full EAT decision (gov.uk).
Facts
The claimant appealed against an order by the employment tribunal that he pay a deposit of £500 as a condition of being permitted to continue his claims for direct and indirect discrimination. He did not pay the deposit so the claims were struck out.
His claims concerned a job advert for telephone interviewers which said applicants needed “a clear voice”, and applicants were asked whether they were “in good health”. The claimant had a stammer. He did not apply for the job, saying the requirement for a clear voice and good health had deterred him from doing so.
For the purposes of considering whether to make a deposit order, the tribunal assumed the claimant was disabled within the EqA.
Held by the EAT: The employment tribunal was entitled to assess his claims as having little reasonable prospect of success, and to make the deposit order.
Deposit orders
The EAT said deposit orders have a valuable role to play in discouraging claims or defences that have little reasonable prospect of success, without adopting the far more draconian sanction of dismissing the claim or response altogether (para 36). They operate as a warning that if the money is paid and the claim pursued, costs might be ordered against that paying party if they lose (para 37).
Given the stage at which a deposit order is usually made, and the need to avoid conducting a lengthy and unnecessary mini-trial, inevitably a tribunal’s assessment will be “impressionistic”. Also in determining that a claim or allegation has little reasonable prospect of success, the tribunal is not making a finding in relation to it but is assessing the likelihood of success at the subsequent full hearing (para 59).
Not genuinely interested in job
One reason the tribunal thought the claims for both direct and indirect discrimination would fail is that the tribunal did not consider the claimant would be able to persuade the tribunal he was genuinely interested in this position (para 11, “fifth paragraph”).
The EAT upheld this decision. Although s.39(1)(a) EqA did not spell out a requirement of detriment, the EAT had recognised that this was implicit in the definitional elements of both direct and indirect discrimination and that in consequence, in the context of claims about allegedly discriminatory job advertisements, a claimant is required to show they were genuinely interested in the position. The employment tribunal was entitled to reach the conclusion it did (para 48 and 72-80).
Direct discrimination
The tribunal also considered that the claim for direct disability discrimination had little reasonable prospect of success because “the relevant comparator would be a person who was not disabled but respectively did not have a clear voice/was not in good health”. The claimant “points to no basis upon which he is able to suggest that such non-disabled candidates would not have been equally put off from applying for the position” (para 10).
The claimant submitted that the correct comparator (Direct discrimination>The comparison) was someone who had a clear voice, and that the claimant was treated less favourably than such a person (para 50). The EAT held the tribunal had identified the correct comparator. It was, said the EAT, “someone who had the equivalent abilities to a person with a stammer and who also did not have a clear voice and/or was not in good health” (para 63).
Indirect discrimination: clear voice
Note: Broadly there would be indirect discrimination if a provision, criterion or practice (‘PCP’) that job applicants must have a clear voice put people with this disability including the claimant at a particular disadvantage, unless (the focus in this case) the employer could show the PCP was justified, including proportionate. See Indirect discrimination.
Clear voice: Tribunal decision
The employment tribunal had said:
“…The tribunal considers that the respondent requiring any candidate to have “a clear voice” will be objectively construed as a requirement that the candidate had good communication skills and is able to be understood by others. The tribunal can accept that those who share the claimant’s disability, if proven, in suffering from a stammer would be disadvantaged by a requirement to have a “a clear voice” and might be put off from applying for the position.
Para 11, “first paragraph”.
However, the tribunal considered it very likely the employer would be able to show objective justification – namely that it had a legitimate aim in requiring employees for this particular type of role to have a clear voice, and that it acted proportionately in seeking to encourage applications from those who had a clear voice. The tribunal considered it very likely this defence would succeed “in a role which involved call centre-based employees telephoning individuals in order to interview them for the purposes of market research. Having a clear voice must surely be a prerequisite for anyone holding such a position or certainly in performing it effectively” (para 11, “second paragraph”).
Even though the claim for indirect discrimination would probably fail, the tribunal said it may be that the employer should consider reasonable adjustments if the claimant had applied for the role. But this was not a reasonable adjustments claim (para 11, “third paragraph”).
The tribunal also rejected applications for reconsideration, saying for example:
15. By a document dated 16 August 2020, the claimant forwarded material from the British Stammering Association and links to other websites contained within that material. He said this showed that people who stammer could succeed in a variety of roles where communication was central to the role, and he asked for a further reconsideration. This further application was refused in a judgment sent to the parties on 8 September 2020. The [employment judge] commented that the new evidence did not impact on his basis for making the deposit order, as it was uncontroversial that individuals who stammered could succeed in a variety of roles that involved the need to communicate; and had the claimant applied for the role, then a duty to make reasonable adjustments may have arisen.
Clear voice: EAT decision
The EAT upheld this tribunal decision that there was little reasonable prospect of the employer’s justification defence being unsuccessful. The tribunal’s conclusion rested on the proposition that it was very likely the employer would be able to show that “a clear voice must surely be a prerequisite for anyone” performing effectively “a role which involve [sic] call centre-based employees telephoning individuals in order to interview them for the purposes of market research”. The claimant pointed out that the burden of proof would be on the employer, and the defence rested at least partly on matters of fact. However the EAT said that bearing in mind the impressionistic exercise being undertaken, and applying the test in case law about deposit orders, the tribunal had identified a proper basis for its conclusion (para 66-69). The tribunal had not purported to resolve disputed factual evidence, nor tried to interpret a matter involving inference or nuance depending on specifics of oral evidence. The EAT said among other things:
Further, the fact that people who stammer are able to work in some fields involving communication skills was not in issue, as the [employment judge] noted … (paragraph 15 above). The [employment judge’s] reasoning was limited to the terms of an advertisement for a job that involved conducting research from a call-centre entirely via telephone calls. The narrowness of the claimant’s objection to this assessment is underscored by the fact that he accepted in response to questions put during his submissions that a PCP requiring good communication skills would have been unobjectionable.
The EAT seems impliedly to acknowledge that the tribunal may not have been correct in formulating the clear voice PCP as “a requirement that the candidate had good communication skills and is able to be understood by others”. However it considered this did not make a difference to the result (para 65).
Indirect discrimination: Good health
Good health: Tribunal decision
The employer maintained that its question about being in good health was in error and was not a requirement. The tribunal considered that even if it was a requirement, the claimant would not be able to show that disabled people “suffering from a stammer” were at a disadvantage, nor that the claimant as an individual was disadvantaged. It considered that having a stammer did not render an individual as someone not in good health. Also it considered a person “suffering from a stammer” would not consider they had to answer that question in the negative because of their stammer (para 11, “fourth paragraph”).
Good health: EAT decision
The EAT upheld the tribunal decision. The tribunal’s reasoning was not based on a premature resolution of disputed factual evidence, but rather on an aspect that it regarded as self-evident. It was indeed hard to see how the claimant would be able to prove the requisite group disadvantage in this case (ie prove that a requirement to be in good health put people who stammer at a particular disadvantage). It did not follow from the fact that the NHS provides treatment for stammering that a significant number of potential applicants with a stammer upon reading the advertisement would regard themselves as not in good health and, in turn, would be deterred from applying. The claimant had not explained how he proposed to establish this issue, upon which he would bear the initial evidential burden. (para 70-71)
My comments
Comments: Rare appeal decision on stammering
Employment Appeal Tribunal (EAT) decisions on stammering discrimination are rare. The main previous one is HM Land Registry v Wakefield, 2008. Unlike employment tribunal decisions, EAT decisions are often binding precedents on points of law. For example this EAT decision would probably be a precedent on the test for when deposit orders can be made, and on the need to be genuinely interested in the job. (What it says on the correct comparator for direct discrimination could also be a precedent, except that in important respects this seems to contradict superior Court of Appeal authority, below.)
Comments: Not a full decision
However this was not a full consideration of the case. The question was whether the tribunal was entitled to make the “impressionistic” assessment it did in requiring the claimant to pay a deposit (above) if he wanted to proceed. The EAT said yes it was. The claimant could have chosen to pay the deposit and take the case to a full hearing, despite the tribunal’s assessment that the case had little reasonable prospect of success. He chose not to (perhaps because of the risk of costs being ordered against him if he lost), so the case will not proceed.
Comments: Clear voice and good communication skills
The tribunal thought it very likely the employer would be able to show that “a clear voice must surely be a prerequisite for anyone” performing effectively “a role which involve [sic] call centre-based employees telephoning individuals in order to interview them for the purposes of market research”. The claimant himself accepted that a requirement for “good communication skills” would be legitimate. The EAT acknowledged that reasonable adjustments might be appropriate for people who stammer in individual cases.
Employers saying they need “excellent communication skills” or similar is not recommended. It fails to identify what particular skills are needed for the job. See eg Job candidates who stammer (stamma.org) and on my website Oral assessments in recruitment>What is being assessed? Should it be assessed?
However in line with the courts’ attitude in this case, tribunals may not be inclined to support general challenges against that sort of requirement where oral communication is important in the job. “Clear voice” might be interpreted to mean just that listeners should be able to understand the person easily. This might be justified for a telephone interviewer. Or it might be applied in a way that excludes anyone whose speech or voice falls outside some non-explicit standard, in a way that is not justified. Hopefully tribunals will be open to challenges (eg under s.15 EqA) against how such criteria are applied in particular cases. For example, is that particular individual able to do the job well, even with a stammer? See eg Excellent communication skills and Oral assessments in recruitment.
The EAT here had perhaps too limited a view of the abilities of people who stammer, when the EAT said it was not in issue that “people who stammer are able to work in some fields involving communication skills” but the tribunal’s reasoning was “limited to the terms of an advertisement for a job that involved conducting research from a call-centre entirely via telephone calls”. There are people who stammer who could do this job well, eg some people who stammer work in call centres. It should be a matter of what is the evidence of the particular person’s abilities.
Comments: “Suffering from” a stammer
In summarising the decision above, I quote the tribunal’s words “suffering from” a stammer. This language is not recommended. People may well stammer without “suffering” from it. See Editorial guidelines (stamma.org) and I don’t ‘suffer from a stammer, I rock my stammer! (stamma.org).
Comments: Comparator for direct discrimination
A more technical comment:
The EAT upheld the tribunal decision on this (above Direct discrimination), saying the comparator was “someone who had the equivalent abilities to a person with a stammer and who also did not have a clear voice and/or was not in good health”. I suggest it is probably correct there was no direct discrimination, but that this formulation of the comparator is not strictly accurate.
The comparator is someone who does not have the particular disability, but in other respects their circumstances, including their abilities, are the same “or not materially different” from the claimant. See s.23 EqA discussed at Direct discrimination>The comparison, and para 37 of the Court of Appeal decision in Aylott v Stockton on Tees Borough Council (a decision which the EAT cited in the present case).
As regards clear voice, I think it is reasonable to see this as an “ability”. So the comparator is treated as not having a stammer but as having whatever level of clear voice the claimant has (s.23 EqA(2)(a)). I suggest the EAT was wrong to say the comparator has “equivalent abilities to a person with a stammer”. Different people who stammer have very different abilities, and legally it is the abilities of the claimant that matter. I imagine the EAT would agree with this if pointed out to them. Also the EAT’s formulation of the correct comparator seems to assume that a person who stammers will not have a clear voice? If it does, this is wrong. The claimant presumably said he did not have a clear voice, because he claimed he was deterred by the requirement to have one. But one cannot generalise from that to what abilities other people who stammer have. (Equating stammering/stuttering with not speaking clearly also seems to be behind asking Did I stutter? (stamma.org) when asked to repeat oneself. People who stammer often see this phrase as insulting.)
As regards the requirement (if there was one) to be in good health, if a health condition which is a disability within the EqA disqualifies a person from meeting an employer’s requirement that applicants be in good health, surely that is likely to be direct discrimination, since the comparator is someone without the claimant’s disability (eg para 37 in the Aylott decision above). Good health is not “abilities” as such, and direct discrimination aims to combat assumptions about people’s abilities based on their health conditions. However, whatever the comparator, the tribunal considered that a stammer did not exclude someone from being in “good health” (above Indirect discrimination: Good health), so on that basis it seems the tribunal would not consider there to be direct discrimination in the present case.
Comments: Unlawful health enquiry?
On good health, the question posed of prospective applicants was: “As far as you are aware are you in good health?” (para 4). The employer said this question was “in error” (para 11,”fourth paragraph”).
Asking this seems likely to be unlawful under s.60 EqA, given it was asked before a job offer: Pre-employment enquiries. There are exceptions to s.60 but it is difficult to see a relevant one here. The Equality and Human Rights Commission (EHRC) has power to enforce s.60 directly, but an individual does not. Where the claimant has responded to the prohibited enquiry and is eg turned down for the job, the burden of proof may shift to the employer to show there was no direct discrimination. However the claimant here does not appear to have responded to the enquiry, or to have been turned down. See Pre-employment enquiries>Enforcement.
It might also be argued that such a wide health question was not consistent with data protection law (now UK GDPR), requiring information to be limited to what is necessary. Another data protection issue might be if the answers went to management rather than in confidence to health professionals who could assess fitness to work.
Comments: “Particular disability”
The courts here assumed the particular disability was stammering, rather than eg speech impairment, or a particular type of stammering. How the particular disability is defined did not really matter in this case. Indeed I think very often it will not matter. I would just say that it is unclear how to define it. The question arises in various contexts, for example Indirect discrimination>”Same” disability and – where most of the limited case law has been – Reasonable adjustments by service providers>Particular kind of disability.
