The following has been written by the claimant in this case, setting out some of his views on the Y v Bradford Council tribunal’ decision.
The Council had told the Claimant that his written answers to the selection questions would be collected after 45 minutes. The Claimant’s interview arrangement had at this stage been 45 minutes for his written answers, which is equivalent to 15 minutes speaking time when applying the 3 to 1 ratio he suggested.
When comparing him to other candidates this time treated the Claimant less favourably; others on average spoke for 20 minutes as found by the Tribunal. The Council had said others were not placed under any time limit in their answers but there was an implicit time limit in that they were expected to respond promptly. The interview arrangement of 45 minutes placed the Claimant under a time pressure to respond quicker than he otherwise would have done. 15 minutes did not apply to other candidates who were not placed under this time limit. This is despite the fact that he had suggested that he would require on average 3 minutes (adjusted by a 3 to 1 ratio) for each of the 9 questions before the interview – giving 81 minutes for his written answers.
After 45 minutes the Council came to collect his written answers with the Claimant notifying them that he was experiencing substantial difficulties with responding to the questions within this timeframe given. The Council gave a total of 15 minutes further time. The evidence presented to the Tribunal as to which responses had been affected by the time pressure related to questions answered within the 45 minute period (Q.3b, 4a, 4b, 4c and 5) where it was clear and obvious there was a causal link between the time given and his answers i.e. very short, only lists and blanks.
The interview involved answering 21 questions in total, 19 being scored. The Claimant responded to the first 12 questions in the initial 45 minute limit and the remaining 9 questions (7 were scored) within the additional 15 minutes given.
The Tribunal found the Council failed to provide the Claimant with advance information on how the interview would be run. They found the interview arrangements adversely affected the quality of his written answers for 3 questions answered within the 45 minute period in comparison to the successful candidates, concluding he would have been scored with higher marks but for this failure. The Tribunal accepted he was under a time pressure in answering questions within this 45 minute period.
The Tribunal also found other candidates spoke “an average of 20 minutes”. This finding is difficult to understand as the Council in evidence said “The interviews took 20-30 minutes”. As an average would be based upon actual interview timings it is difficult to see how the Tribunal could have arrived at this finding as the evidence was unavailable. As the evidence required to calculate (or estimate) an average timing was not available the Tribunal was unjustified in attempting to derive this measure as a finding of fact. This finding was used by the Tribunal (Para 17.1) to justify the Council in the time they had given:
“Mr Y claimed that he was discriminated against in the time he was given to complete his responses to the interview questions. There were two aspects to this: the amount of time he was given to complete the responses in writing put him under more time pressure than other candidates, and he was given a time limit for his responses where they were not. The first aspect amounts to an allegation that the Council did not make a reasonable adjustment to the time he was given to provide his responses. The Tribunal does not accept this. The other candidates took an average of 20 minutes to provide their responses. Applying the 3 to 1 ratio, it was reasonable for the Council to give Mr Y 60 minutes to provide his. The Tribunal does accept, however, that Mr Y would have been able to manage his time better had he known in advance that 60 minutes would be allowed …”
The Claimant had been treated less favourably for a reason related to his disability in the sense of receiving lower marks. These marks were due to the 45 minute time limit, placing him under a time pressure not applied to other candidates. However, the Claimant had not been informed by the Council how the interview would be run and the reason for receiving lower marks was found by the Tribunal to be this failure.
The Claimant does not accept the reason for receiving lower marks was directly a failure to know how much time he would have. The reason for him receiving lower marks was due to the Council deciding how much time should be provided. No other candidate was given a (proportionate) time limit of 15 minutes to answer these questions.
The failure to give information as found by the Tribunal does not affect the overall time limit of 60 minutes. Only by giving more time would the Claimant have been able to respond to the 3 questions found scored with lower marks i.e. not at the expense of receiving lower marks for other questions scored. However, advance information on how the interview would be run would have affected the time provided as he certainly would have sought, and received, a change from 60 to 90 minutes (see “What should have happened?“).
The Tribunal did not consider the question of whether the 45 minute time limit adversely affected the Claimant’s scores for the remaining 7 questions, despite the fact he was under a time pressure not applying to other candidates. As a result the Tribunal failed to establish the extent to which this time pressure had treated the Claimant less favourably.
Furthermore if the Council’s evidence is taken at face value, in the absence of other candidate interview timings, no other candidate was given a (proportionate) time limit of 20 minutes. The Tribunal should have considered further the effect of this time pressure to include the 7 questions answered (and scored) after this 45 minute time limit.
In broad terms, where the employer’s interview arrangements (for example) place a disabled person at a substantial disadvantage in comparison with non-disabled people, the employer is obliged to take such steps as it is reasonable for him to have to take in order to prevent the arrangements having that effect.
Were the Council’s interview arrangements sufficient to prevent a substantial disadvantage to the Claimant?
The Tribunal appears to have considered that he was not substantially disadvantaged as the Council had given him 60 minutes in total and in comparison to other candidates this was a reasonable amount of time. Bearing in mind the issue of the availability of evidence the Claimant would query this approach which the Tribunal adopted. The question could be answered on the facts if the evidence was available i.e. other candidate interview times, but the only evidence relating to this question is from the Council who said “The interviews took 20-30 minutes”. The Claimant had suggested before the interview that he would need 81 minutes for 9 questions, yet he was given only 60 minutes for 21 questions. The Tribunal found lower marks were given to the Claimant in 3 out of the 12 questions considered within the initial 45 minute limit proving he was under more time pressure to respond than he otherwise would have been. The Claimant was given only 15 minutes further time to answer the 9 remaining questions showing he was under a time pressure not of his choosing. The Council argued other candidates were under an implicit time limit to respond promptly, but the Claimant had been given the explicit time limit of 60 minutes for his written answers.
In these circumstances, in particular as others were not limited in their answers, it would have been appropriate for the Tribunal to have considered the comparator as being other candidates given the upper time limit to respond. The Claimant had been given proportionately a 20 minute limit as compared to other candidates who were given up to 30 minutes. The reason the Claimant had received lower marks was due to being placed under a time constraint not applying to other candidates. The adjustment of advance information on how the interview would be run would not in itself have removed this reason for being scored with lower marks. However, the Tribunal found the Council were justified in placing a time limit on the Claimant’s written answers. As the Council had not given proportionately a 30 minute limit, which implicitly was given to other candidates if they required it, they failed to reasonably adjust the time given for his written answers.
The Council would have been justified in scoring him with lower marks if, but only if, they had given him the same chance to answer the questions as was afforded to other candidates.
The Claimant continued to be placed at a substantial disadvantage in his interview despite the adjustments made. The Council could have alleviated this disadvantage by making a reasonable adjustment to the time given.
What should have happened?
The Claimant’s view is that it would have been reasonable for the Council to have adjusted the time as suggested. This would not have treated the Claimant any more favourably than other candidates. At the hearing the Claimant’s representative asked both managers on cross-examination if it would have been reasonable for them to have given 90 minutes for the interview, both replying “Yes”.
Furthermore it would have been a reasonable step for the Council to enquire on the Claimant’s actual typing speed. Had it done this, the implication of the Tribunal’s decision is that it would have been reasonable for the Council to have adjusted the time in proportion to the average time given to other candidates. On the Tribunal’s findings this would have meant applying a 5 to 1 ratio to an average of 20 minutes, giving 1 hour 40 minutes for his written answers. The Tribunal’s approach has difficulties though in that an average time is only known retrospectively and if recorded.
- Y v Bradford Council – tribunal decision
Dated 29th May, 2006
Views or opinions expressed on this page are those of the claimant and not necessarily those of the webmaster.