Home ยป W v Central Manchester University Hospitals NHS Foundation Trust

W v Central Manchester University Hospitals NHS Foundation Trust

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Last updated 13th December 2009 (part update 11th June 2019).

This was a claim for reasonable adjustments by a job applicant who is deaf in one ear. The claim was turned down but there are interesting comments about employers being flexible on their requirements for educational qualifications, in order to reflect the difficulty that disabled people may have in education. The tribunal also considered the claimant’s lack of experience, which was argued to be a result of his disability.

Employment Tribunal, November 2009 – Case No. 2405136/2009.

Facts

The claimant was turned down at interview for a job as a Psychology Assistant. He was disabled due to deafness in one ear and associated tinnitus. He claimed the employer had failed to make sufficient reasonable adjustments.

The deafness had arisen due to removal of a tumour at age 16. He had further problems with a regrowth of the tumour during the second and third years of his undergraduate degree, and was unable to take some of his exams. He was awarded only a pass degree. To redress his academic position he went on to successfully complete a Masters degree. He was initially refused membership of the British Psychological Society because of his degree award, but the Society later adjusted its requirements to admit him to membership.

His job application included a detailed statement about his disability and how it had impacted on his academic achievements. He wished to be considered by the employer under the Guaranteed Interview Scheme, but was turned down for interview on the basis that he did not meet the ‘qualifications essential’ requirement of having at least a 2.1 degree. After the claimant had challenged this, the employer did decide to interview him along with the others shortlisted, noting that if they took into account the reasons for not getting a higher degree the claimant did meet the minimum requirement. The employer later expressed this as a ‘goodwill gesture’.

The interview panel made some adjustments at the interview: they complied with the claimant’s request not to speak at the same time, and not to turn over their sheets of paper at the same time.

Held: the claim was dismissed. There was no breach of the duty to make reasonable adjustments. There is more detail below on some of the adjustments claimed:

Requirement for educational qualifications

The claimant argued that the employer should have looked behind his first degree classification and recognised the compensatory value of his Masters degree. The tribunal, however, found that once the candidates got through to interview stage, as the claimant had done, their class of degree was not part of the criteria used by the interview panel to chose between them. There was therefore no failure to make reasonable adjustments regarding the qualifications required for the job.

The tribunal also commented that the statistics did not satisfy it that deaf/hard of hearing people were nearly eight times less likely than average to progress to university, as asserted by the claimant.

Although the tribunal found the claim not well-founded, it did express concern that the claimant was only interviewed after he had raised issues of the failure to interview him under the Guaranteed Interview Scheme. The tribunal commented, in the spirit of assisting the employer in its recruitment of disabled people:

“The [employer] may wish to revisit its criteria on the person specification and, in particular, the educational qualification to consider whether they disadvantage disabled people. If the criterion in relation to educational attainment remains in its current specific form without making provision for equivalent alternative, the [employer] needs to take particular care when considering applications from candidates who declare themselves to be disabled, in considering whether their educational achievements are adversely affected by their disability and if so whether an adjustment may be made. If it is the case that disabled people are underrepresented in the psychological profession, the [employer] may wish to consider, particularly by reference to its general duty under the [disability equality duty], whether it could take steps to improve the representation of disabled people, for example by a programme of affirmative action. It is, as we have noted above, lawful to treat a disabled person more favourably than non-disabled persons.”

Lack of experience

A key ground for not appointing the claimant was that his experience of psychometric testing was under-developed. Since this was a short term appointment (10 or 12 months) the employer said they needed someone who could hit the ground running.

According to the claimant there was no need for sophisticated experience or skills, and the fact that it is was an overcrowded profession should not be allowed to exclude people who, because of their disability, have been excluded from the workplace. Also, because of his long period of unemployment the claimant lacked confidence and articulacy.

The tribunal accepted that the claimant, because of his disability, achieved a lower degree than he otherwise would, and that this may have adversely affected his employment prospects. However the required knowledge and experience could, so far as not acquired during academic study, have been acquired in the context of voluntary work. The claimant had not satisfied the tribunal that he was disadvantaged by his disability in gaining such voluntary experience.

In the tribunal’s view, the claimant was therefore not put at a substantial disadvantage in comparison with the non-disabled interview candidates by the requirement to have experience. In any event, though, the tribunal considered that the employer could not reasonably have known that the claimant would be put at a substantial disadvantage by the requirement. In his application form, the claimant had only addressed educational qualifications as an area where his disability put him at a disadvantage.

Furthermore, the tribunal would not have found there was a failure to make reasonable adjustments. It considered that the criteria used by the interview panel to choose between candidates properly reflected the requirements of the job. The short term nature of the job meant it would not have been reasonable to provide training and mentoring for the claimant.

My comment

This is not an appeal case and does not have no binding authority.

It is interesting though that the tribunal saw flexibility in requirements for educational qualifications of disabled people as something that might be expected of an employer, presumably under the reasonable adjustment duty. Under Equality Act 2010, indirect discrimination and perhaps discrimination arising from disability might also be relevant. (The tribunal found that in this particular case, following the claimant’s complaint, his lack of a 2.1 degree had not been held against him.)

Research indicates that stammering too can lead to underachievement in the education system: see Examples of reasonable adjustments: Recruitment>Academic qualifications. The present case was a relatively clear one in that the claimant had gone on to achieve a Masters degree to compensate for the ‘pass’ grade on his first degree – though even here the tribunal commented that it did not have evidence to tell what level of first degree would have been obtained without the medical problems. However there should be no need for a ‘compensatory’ qualification if the qualification requested by the employer is not really justified, or perhaps if the job applicant can show in some other way that they have the skills of knowledge.

The tribunal was less sympathetic on arguments that the employer should adjust its requirement for relevant experience. However, each case will depend on its facts.

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