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.
Is the stammer a disability?
- Disability: Discounting speech techniques etc
- Disability: ‘Normal day-to-day activities’
- S v The Lord Advocate.
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/coverings and stammering updated, including:
- Stamma in the UK has produced “I stammer” face masks, available for purchase in the UK only: stamma.org/shop/face-masks. Linked from Face masks/coverings>Transparent face mask or ‘I stammer’ face mask or card may help.
- Transparent face masks (ClearMasks) with an anti-fog coating are being made available to NHS and social care workers, subject to health and safety constraints: NHS England note regarding the use of ClearMasks (pdf, rcslt.org) and RCSLT policy statement (pdf, rcslt.org). Linked from Face masks/coverings>Transparent face mask or ‘I stammer’ card may help.
- New rules from 24th September in England under which staff in retail, leisure and hospitality (eg shops, bars, libraries) may be required to wear a face covering, subject to exceptions. Also there are particular requirements for staff such as hairdressers and beauticians providing close contact services. See Face masks/coverings and stammering>Do regulations require a face covering for staff?
- From 23rd September, new requirement to wear a face covering in taxis and private hire vehicles in England.
- New section Reasonable excuse: speaking to someone who relies on “clear sound” to communicate.
- Stamma in the UK are aiming to produce face masks telling people you stammer. Let Stamma know what you want at surveymonkey.com.
Links added to Coronavirus (Covid-19):
- The challenges of living with a stammer in lockdown (telegraph.co.uk), October 2020 – nice that it links to this stammeringlaw website at the end
- Relearning how to speak up (dysfluentmagazine.com) in Zoom meetings.
Jobs done by people who stammer
Additions to Examples of jobs done by people who stammer/ stutter:
- Ewan McPherson (scottishstammeringnetwork.org), comedian, October 2020
- Jackie Bird (scottishstammeringnetwork.org), journalist and broadcaster, October 2020
- Captain J. Lang MBE, Defence Medical Academy (www.scottishstammeringnetwork.org), October 2020
- Thriving as a sportswriter in the face of adversity (isad.isastutter.org) – ISAD Online Conference, October 2020
- Teaching with a stutter (isad.isastutter.org) – ISAD Online Conference, October 2020
- Entering the dragon’s mouth (stamma.org) – counsellor. 2019
- The lawyer’s speech: Stutter turns out to be ‘great gift’ (www.bizjournals.com) – 2011 – employment litigator, including jury trials, in United States
- My journey to becoming ‘The Stammering Communicator’ (stamma.org) – sales and marketing consultant. debbiejollie.com.
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 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.
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.
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.
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.
- Previous updates: Website updates July to August 2020.