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Website updates September to October 2020

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Last updated 25th October 2020.

Discrimination by algorithm in recruitment

Artificial intelligence (AI) can have huge benefits, but may also be discriminatory. There are dangers it may discriminate against disabled people, including those who stammer, when used in recruitment.

A particular concern is where AI software assesses a recorded interview done on the job applicant’s computer or smartphone, giving a recommendation to the employer on whether the candidate should proceed to the next stage.

More: Discrimination by computer algorithm: recruitment.

Is the stammer a disability?

Reviewed/updated:

Scottish Stammering Network website

Not on my website, but I’ve written a short outline of stammering and the Equality Act for the new Scottish Stammering Network website: www.scottishstammeringnetwork.org/support/is-stammering-a-disability/.

Which UK courts need not follow EU case law after 2020?

Under draft UK regulations published by the government, the Court of Appeal (and some equivalent courts) as well as the Supreme Court will be able to depart from EU court decisions made before the end of 2020. The Court of Appeal will use the same test as the Supreme Court, which seems to mean that even these two courts will “normally” follow this EU case law. See Brexit>Exception for Supreme Court and Court of Appeal.

This is under draft regulations (legislation.gov.uk) issued in October 2020, which follow on from a government consultation: Departure from retained EU case law by UK courts and tribunals (gov.uk).

Also added to Brexit page Supremacy of EU law until UK modifies its laws.

“Find the right words” campaign by Stamma

This campaign seeks to change the language and perception of stammering, using outdoor digital adverts and social media. Go to “Find the right words” campaign by Stamma.

Face masks

Face masks/coverings and stammering updated, including:

Coronavirus (Covid-19)

Links added to Coronavirus (Covid-19):

Jobs done by people who stammer

Additions to Examples of jobs done by people who stammer/ stutter:

Griffiths case on reasonable adjustments

Added 2015 Court of Appeal decision in Griffiths v Secretary of State for Work and Pensions.

The Court of Appeal confirmed the wide scope of the reasonable adjustment duty under s.20 EqA, holding that it can include adjustments to an absence management policy. However the court said that reasonable adjustments normally look to the future. Some claims may be better analysed under s.15 EqA, on the basis of whether or not a dismissal, sanction or other unfavourable treatment (for a disability-related reason) was proportionate in all the circumstances. There could be a s.15 claim even if adjustments to avoid the dismissal etc would not have been reasonable.

Indirect discrimination

Indirect discrimination page updated. In particular, 2017 Supreme Court decision in Essop v Home Office (UK Border Agency) added, holding that the claimant did not have to show the reason for the disadvantage to the protected group, and reviewing indirect discrimination more generally.

Agents

2020 Supreme Court decision added on how far a company is liable for actions of an agent in the context of civil law: Various claimants v Barclays Bank plc. However it is not clear whether this case is relevant to the Equality Act.

If claimant not willing to reveal disability

Employment Appeal Tribunal decision in A Ltd v Z, 2019, added in new section Knowledge of disability>Constructive knowledge: If claimant not willing to reveal disability. An employer which did not take reasonable steps to find out about a disability may not be taken to have constructive knowledge of the disability if, even had it taken reasonable steps, the claimant would not have revealed the disability. This may be releavant for someone with a covert stammer.

Research project

A student is looking for people to take part in her research project on How has social distancing affected people who stammer? (stamma.org), Sept 2020. Added to my page Coronavirus (Covid-19).

Knowledge of occupational health practitioner

Section on Knowledge of occupational health practitioner (OH) expanded and updated. Knowledge of what you tell OH is not normally attributed to the employer, unless OH has consent to disclose. So just telling OH does not mean the employer knows about it for the purposes of the Equality Act. Similarly writing something in a pre-employment health questionnaire does not mean the employer knows about it, as the answers will probably be confidential to OH.

Also, on the relevance of an OH opinion which says there is no disability even though the tribunal decides there is one: Knowledge of facts, even if an employer wrongly advised it is not a disability updated by adding Donelien v Liberata 2018 and a note of Kelly v Royal Mail 2019.

If disability is employer’s fault, or worsened by employer’s actions

With a stammer starting in adulthood, it may be something at work which causes the stammer. I’ve expanded Disability: Stammering starting in adulthood>If disability is the employer’s fault, including the 2015 cases of McAdie v Royal Bank of Scotland and Monmouthshire County County Council v Harris.

DWP v Boyers: outcome rather than procedure in justificaton defence?

A recent Employment Appeal Tribunal case indicates that on a claim under s.15 EqA, a tribunal should not decide the justification defence on the basis of whether the employer followed the right decision-making process. However I suggest that the decision-making process is still important in practice. See Objective justification defence>Outcome rather than procedure?

Some reasonable adjustments cases – relatively old

British Telecommunications v Meier, Northern Ireland Court of Appeal, 2019
A job applicant was at a disadvantage in a situational judgment test because he had Asperger’s syndrome. This test was the initial stage in the recruitment process. The employer refused to interview him when he failed it. The court held this was a failure to make reasonable adjustments. It did not matter that the claimant had not suggested at the time what reasonable adjustment he wanted.

Government Legal Service v Brookes, EAT, 2017
A job applicant with Asperger’s syndrome asked the employer to allow her to give narrative answers in an assessment as part of a highly competitive recruitment process. She said the normal system of selecting from multiple choice answers put her at a disadvantage. The employer refused. The EAT upheld her claim for disability discrimination.

Home Office v Kuranchie, EAT, 2017
The claimant had dyspraxia and dyslexia. She was having to work long hours to get her work done. A flexible working arrangement was put in place. She later claimed the employer should have reduced her workload by way of reasonable adjustment. He claim was upheld even though she had not suggested this at the time.

Project Management Institute v Latif, EAT, 2007
There was held to be a failure to make reasonable adjustments for a professional exam. This was so even though the claimant had not identified the particular adjustment at the time of the exam. However a potentially reasonable adjustment, or at least its broad nature, should be identified by the time of the hearing. It is then for the employer etc to show the adjustment is not reasonable.

Also Reasonable adjustment rules: employment>Onus to comply is on the employer and Reasonable adjustment rules: employment>Burden of proof.

Anonymity orders

X v Y, EAT, 2019 and a mention of Fallows v News Groups Newspapers, 2016, added to Online tribunal decision database, and anonymity orders.

Voice recognition system to phone in sick

If an employee who stammers is unable to use this system, the employer is likely to be required to offer an alternative, as a reasonable adjustment: Examples of reasonable adjustments: In the job>Telephone: Not having to phone in sick.

20th anniversary of stammeringlaw, 1999-2019