Lowe v Cabinet Office

A claim for reasonable adjustments to an assessment centre for the Civil Service Fast Stream failed. The claimant had Asperger’s Syndrome. The tribunal said the further adjustments she sought would have meant that important competencies concerning relationships and communication were not assessed. There was compelling evidence that the competencies being assessed were, in practice, required on a daily basis in the workplace. The employer was willing to adjust how the competencies were assessed.

Employment Tribunal, [2011] EqLR 803. ET/2203187/10. Tribunal decision pdf (Practical Law website).

Facts

A woman with Asperger’s Syndrome applied for the Civil Service Fast Stream, aimed at selecting future leaders of the Civil Service. It involved a one-day Fast Stream Assessment Centre (FSAC), to select “graduates with the calibre and potential to join the Fast Stream”. Those selected moved through a series of different jobs within a department in a series of 12 to 18 month fast-stream postings. This was designed to give “the skills and experience you need to deliver effective public services at more senior level. In the previous year only 3.2% of applicants had been accepted into the fast stream. Candidates were assessed against six competencies, two of which were:

• Building productive relationships – your ability to build relationships and achieve goals through these relationships; and
• Communicating with impact- your ability to communicate, negotiate and influence.

Effects of her Asperger’s

Some of the ways the claimant was affected by her Asperger’s were:

• She had difficulty interpreting facial expressions and body language, especially with strangers.
• She could not easily read emotions in these situations, for example she was unable to tell the difference between friendly and malicious laughter.
• She did not look at peoples’ faces when talking to them, which sometimes caused them to think she was not communicating with them, or that she was being rude or lying.
• She reacted to what she was thinking about rather than what was in front of her, and found it difficult to so show interest in what others are saying. People could think she looked bored even though often she wasn’t.
• She had difficulty with normal conversation and did not realise whose turn it was to speak. So she sometimes interrupted or stopped speaking.
• She found group discussions particularly difficult for these reasons, and did not find it easy to keep track of more than one person at a time.
• She was poor at spotting social cues, found it stressful using the telephone, and had difficulty coping with change and uncertainty, eg if something was cancelled.

She had no problem with multi-tasking or thinking about abstract concepts. Conceptual debate came easily to her. She was also imaginative and creative.

Adjustments made and requested at the time

Candidates had to pass some tests before the one-day assessment centre. However the Civil Service exempted the claimant from the online test stages, given her disability. She then passed an invigilated e-Tray exercise, for which she was given extra time and a separate room by way of reasonable adjustments.

Adjustments agreed by the employer for the assessment centre day included:

• extra time
• that the assessors should be aware that the claimant had Asperger’s syndrome and struggled to interpret facial expressions and body language and often found it hard to understand non-literal expressions
• that she needed to be given a few seconds to answer questions in the group and the briefing exercises.

One adjustment sought by the claimant but rejected by the Civil Service was that in the group exercise members should be asked questions in turn and in a specific order. The Civil Service decided that this adjustment would make it impossible to test candidates against the competencies required.

Scores at the assessment day

Her highest score was in the “briefing exercise”, where she scored an average of 2.65 (out of 4) for each of the four competencies being marked in that exercise.

The “group exercise” led to some low marks, with competencies in “building productive relationships” and “communicating with impact” marked at only 1.75 (out of 4). The assessor’s comments included that she did not contribute to the structure of the discussion, her contributions were too infrequent, she was not fully engaged with the debate, and she sometimes made a point cutting across the flow of the discussion. Another witness observing the exercise said that the claimant contributed very little although others in the group tried to bring her in.

If any candidate scored less than 2 for any competency it was an automatic fail. The claimant scored less than 2 for “building productive relationships”.

Of 585 candidates in the assessment centre, 188 were recommended for appointment that year. To reach the standard of those recommended for appointment, the claimant would have had to score an average of 2.84 for each competency. She scored that for only one of the six competencies.

The tribunal said there was no doubt that the candidates were marked objectively and that the disabled candidates are treated in the same way as others, for marking purposes. In fact both assessors expressed the view that, knowing about the disability in advance, they probably marked the claimant up in some respects. However no allowances were made for any disabled candidate in the sense of being allowed a lower pass mark or a lower standard for any single competency. The adjustments allowed by the Civil Service stopped short of adjusting the competencies or the objective standard by which assessors must judge them.

Adjustments which the claimant argued should have been made

The criteria or practices (PCPs) which she claimed put her at a disadvantage were “(a) the requirement for successful applicants to hold a high standard of communication skills, and (b) the assessment of the claimant’s interpersonal, communication and presentation skills by means of an assessed group exercise and practical activities at interview”.

Sheffield law centre argued on the claimant’s behalf that the following adjustments should have been made:

1. To exclude the claimant from the group activity, with an adjustment to her scores. It was suggested that scores from other activities could either be averaged; or she could be credited with the average score of the group activity that was achieved by successful candidates. However the tribunal decided this would make no difference because, even with these adjustments in scores, she would not have reached the minimum level of successful candidates appointed.
2. The second proposed adjustment, put as an alternative, was:
   1. First the group discussion “should have been with people· aware of her disability and who had received training in how to communicate effectively.”
   2. Second, a facilitator for the discussion could have ensured that the claimant contributed.
   3. Third, the assessor or assessors should have been “fully informed about the nature” of the syndrome.
   4. Fourth, behaviour perceived as negative should have been ignored where it arose from the disability.
   5. Fifth, the assessment scores should have been weighted so that those qualities relating to communication skills were in her case given less weighting.
3. In closing submissions a new suggestion was made – namely that the briefing exercise, which produced the claimant’s highest score for the four competencies marked, should have been applied across the board.

Tribunal decision

The employment tribunal rejected her claim:

Arguments

The Civil Service argued that the nature of fast stream recruitment was that it had always looked for skills and competencies that put a premium on a high level of communication. Its witnesses referred to:

• the need to be able to make a convincing case and hold your own in discussion;
• the competencies as being required on a daily basis;
• a fast streamer needs to be quick thinking and able to influence people in meetings;
• it was necessary to show that you could walk into a room of strangers and influence them right from the beginning of the discussion.

The Civil Service said the claimant would, in many stressful and emergency situations, be at a significant disadvantage in such an environment. It argued that it would be unfair to place the claimant in a job that she could not do.

The claimant’s advisers recognised that the adjustments required for the claimant to be passed in the selection exercise went to the very competencies that were being judged as essential. The tribunal said: “In effect, the claim is that the claimant should have been excused the assessment in the group exercise.” Two competencies would have to be discarded in her case: “building productive relationships” and “communicating with impact”.

Reasonable adjustments to the job itself?

The tribunal accepted the Civil Service’s evidence that the competencies were a genuine requirement. The tribunal said:

“It is evident that we do not know which department a successful candidate would be assigned to. We cannot say that an assessment exercise should have been adjusted on the basis of a potential adjustment that could subsequently be made to an unspecified job. This carries speculation to impermissible extremes. The [Civil Service] was entitled to assess candidates for the generic qualities required for fast stream entry.”

The claimant’s submission was circular because it amounted to saying that the claimant had to be selected, regardless of scoring, because some reasonable adjustment could always later be made to the job content.

The tribunal accepted the Civil Service’s submission that, in assessing the claimant, it was not reasonable to adjust either the competencies or the way in which they were judged, so as to inflate the claimant’s score. The tribunal agreed that there was an analogy with the case of Hart v Chief Constable of Derbyshire, below. In that case, due to a disability, a probationary constable became unable to carry out duties of a police constable which would routinely expose her to confrontational situations requiring restraint, arrest and detention. In Ms Lowe’s case a successful applicant would be moved around the departments once s/he had been admitted to the fast stream.

(For my comments see below Comments: Reasonable adjustments in the job, and Hart case.)

Competences being assessed were required for job, so it was reasonable not to adjust them

That still left open whether any of the adjustments sought by the claimant should have been made. The Civil Service accepted the need to make adjustments to the selection procedures, but it did not countenance any dilution of the competencies themselves. The tribunal said:

We regard this as a reasonable position to take in the light of the nature of the senior civil service, to which fast stream candidates aspire. The evidence that these can be pressurised jobs and that the competencies are, in practice, required on a daily basis, is compelling. The central issue for the tribunal is whether the [Civil Service’s] adherence to the criteria for selection in all cases is reasonable. We have concluded that it is.

The tribunal agreed with the claimant that the reasonableness test is objective, in the light of Smith v Churchills Stairlifts. In particular, a genuine and relevant view held by an employer does not prevent a tribunal from finding that it would be reasonable to make an adjustment. However in this case the objective reasons for saying that no adjustment to the selection criteria (competencies) would have been reasonable included the following:

1. The environment in which a successful candidate operates must entail interpersonal communication. This will be between individuals and also in groups. It will include telephone communication.
2. The advocacy and presentational skills are central to the position and it is reasonable for the civil service to look for a high level of those skills in successful candidates.
3. The Civil Service Commission Recruitment Principles require selection to be on merit and the basis of fair and open competition. Annex A includes the principle that no one should be appointed to a job unless they are competent to do it.

None of this meant that in all cases a refusal to dilute the competencies or to alter the method of selection will be reasonable. However in the case of Ms Lowe, the tribunal judged the stance taken by the Civil Service to be reasonable. The tribunal said: “The process was adjusted for the claimant, but the competencies were, reasonably in our judgment, left intact.”

Some specific adjustments

The claimant had argued (adjustment 3 above) that her highest score – that for the briefing exercise – should be applied across the board. This was not reasonable, said the tribunal. Firstly it would not in any event get her to the minimum mark of candidates appointed in that year. There was a more fundamental objection in that it applied an average to a competency, namely “decision making”, which was not said to have been impaired by her disability. In any event, it would not be reasonable to ignore the markings from three other areas of assessment (e-tray, policy, interview) which did not include the group exercise. The claimant’s argument amounted to an arithmetical device to find the highest mark.

There were two other specific adjustments which the claimant had sought. She asked, in advance, for the group discussion to take place in a specified order, and the Civil Service refused this. The tribunal held this was a reasonable refusal, because it would have undermined the group dynamic and the very competencies that were being tested in the group exercise.

Second, it was suggested that a facilitator should have been appointed for the group discussion, so as to ensure that the claimant made a greater contribution. The tribunal viewed this as open to the same objection. It would, in reality, destroy that exercise.

Conclusion

The tribunal noted that the various adjustments claimed were suggested either individually or cumulatively. Generally, their aim was to ensure that any disadvantage to the claimant arising from her disability was removed. The tribunal did not consider it reasonable to make such adjustments. It accepted the fundamental point of defence that the recruitment exercise was a challenging one and was designed to find high-quality candidates for the fast stream. Removing the disadvantage that the claimant’s condition led her to suffer in the process would destroy the essence of this exercise. Given, in particular, the nature of the fast stream posts, that would not be a reasonable adjustment for the Civil Service to have to make.

My comments

Comments: Not binding

The Lowe decision is only at employment tribunal level. It is not an appeal case, so it is not a binding precedent.

Comments: Decision on the facts

The tribunal acknowledged that this was a decision on the facts and evidence of the particular case. There was compelling evidence that these could be pressurised jobs and that the competencies being assessed were, in practice, required on a daily basis.

It was therefore reasonable for the Civil Service not to vary the competencies being assessed. It was though willing to make resaonable adjustments in how the competencies were assessed.

Assessments of oral skills in this context is discussed on my page Employment: Assessment of oral skills in recruitment.

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

This case was decided under the Disability Discrimination Act 1995. Under the Equality Act 2010 she would probably also have claimed for discrimination arising from disability under s.15 EqA. The main question would have been whether the Civil Service could show that its assessment was a proportionate means of achieving a legitimate aim (the justification test). It seems likely that this tribunal would have rejected a claim under s.15, on the basis that the assessment and standards applied were justified.

Comments: Reasonable adjustments in the job, and Hart case

It seems that normally assessments on recruitment should take into account any reasonable adjustments that should be made in the job itself. That seems right on legal principle, and reflects para 16.55 of the Employment Code: see Assessment of oral skills>Reasonable adjustments in job itself.

The tribunal here considered that as regards the disputed adjustments, it should not take into account reasonable adjustments to the job itself:

• The tribunal was influenced partly by the Hart case below. However the Hart case seems to have been decided on the basis of the Police Regulations, which obviously do not apply to the Civil Service or to other employers generally.
• The tribunal in Lowe drew an analogy with Hart apparently on the basis that like a person passing their police probation is expected to be able to perform a wide range of duties, Ms Lowe if accepted would be going round various different jobs as part of the Fast Stream process. However (leaving aside the importance of the Police Regulations in Hart) this seems no reason not to consider reasonable adjustments in the job at least in a generic way. Eg what reasonable adjustments could be made in meetings generally?
• Adjustments would have to be reasonable in the circumstances. For example, in the workplace would it be reasonable to have a facilitator at group discussions giving the claimant time to make her contribution? – one of the adjustments the tribunal held was not reasonable at the assessment day. Perhaps it would not be reasonable in this case, given the roles and range of situations that fast-streamers were expected to take on. However the tribunal did not clearly address this.
• Perhaps possible adjustments in the job proposed by the claimant were (as in the Hart case) ones which would have significantly restricted the duties she could undertake. If so one can understand why the tribunal may have considered that unreasonable, especially in the context of the Fast Stream.
• Importantly, the Civil Service did allow some adjustments (above) to her assessment, including extra time and being aware of the effects of her Asperger’s. These undisputed adjustments may have reflected adjustments that might happen in the job.
• The Lowe decision is not an appeal case and so is not a binding precedent. Also, although I suggest the tribunal should have said more about the possibility of reasonable adjustments in the job, this may well not have altered the result on the facts of the case.

Hart v Chief Constable of Derbyshire (bailii.org), Court of Appeal, 2008
Injuries sustained by the claimant during her probationary period as a police officer resulted in a continuing disability. This meant she was unable to perform duties of a police constable which would routinely expose her to confrontational situations requiring restraint, arrest and detention, whatever adjustments were made. The police therefore terminated her probationary employment. She argued that the police should have offered her a staff post by way of a reasonable adjustment, to enable her to complete her probationary period. Regulation 13 of the Police Regulations 2003 said that during probation “the services of a constable may be dispensed with at any time if the chief officer considers that he is not fitted, physically or mentally, to perform the duties of his office…”.

The Employment Tribunal rejected her claim. Up to the point of certification under regulation 13, the Chief Constable could refuse to waive the strict requirements of the PDP(?) insofar as they related to competencies requiring confrontational experience. The standard required by the PDP, read with regulations 12 and 13, was an irreducible minimum in the training of a police constable.

The Employment Appeal Tribunal (EAT) upheld the tribunal decision. The EAT said that the police authority was in effect playing two different roles: as the employer, but also in determining whether the probationary period had been satisfactorily completed they were assessing a standard of competence against national criteria. Regulation 12 of the Police Regulations made plain that a constable who had satisfactorily completed a probationary period could transfer to another police force without the need for another period of probation. The police authority was confirming a formal status on the officer by representing that he or she had completed the probationary requirements.

The EAT said that if this had been an employer without the regulatory function, it would have been possible for the police authority to have found a job for her performing some of the duties of a serving constable but without carrying out routine confrontational duties. However in the present case it was not necessary to explore whether the force could reasonably have found an alternative job for the claimant (the force did this for officers who became disabled having completing their probation). The tribunal was entitled to uphold the Chief Constable’s view that it was unreasonable to employ the claimant in this way because he would have had to lower the standard normally expected of a probationer, and as a consequence would have misrepresented her status to others, especially other police authorities.

The Court of Appeal refused permission to appeal. It rejected the claimant’s argument that the tribunal should have looked at the particular facts and circumstances of the case to determine whether an adjustment was reasonable. The police rules made clear that there was a substantial difference between a probationary officer who had not qualified as a police officer or had not completed probationary training, and a qualified police officer where there was much greater scope to make reasonable adjustments. There was an irreducible minimum in the qualification for a police officer, and as a matter of law, the chief constable was entitled to refuse to lower the standard. The police regulations were quite clear and the chief constable was plainly entitled as a matter of law to act as he did.

The EAT had drawn an analogy with the DDA 1995 provisions relating to professional exams, saying they supported the conclusion that it is reasonable to insist on standards being maintained where someone had not yet passed the probationary requirement. However the claimant argued the analogy was flawed, given that competency standards in professional exams were required to be proportionate. The Court of Appeal disagreed in the present circumstances, saying that when one is discussing the question of a police officer, the tribunal was right to describe what it put as an “irreducible minimum” and the regulations plainly entitled the chief constable to act in the way he did.

Accordingly the tribunal did not err in law in holding that the requirements of the regulations which necessitated training and experience in confrontational situations were what it described as an “irreducible minimum” in the training of police constables, and it was not therefore open to the employer to make an adjustment which would have the effect of waiving the strict requirement under the regulations that an individual must be fit physically and mentally to perform the duties of a police constable.

Note: It will be apparent that this is very much a decision based on the Police Regulations, which themselves have legal effect. The EAT distinguished the police from other employers “without a regulatory function”.

• Employment: Assessment of oral skills in recruitment