An employer adjusted the recruitment process for a person with a severe stammer by allowing written responses to pre-set interview questions, and a written equivalent of a presentation exercise. However, there was held to be a breach of the reasonable adjustment duty. The claimant had not been given enough time for the written presentation. Also he had not been told how long he had to write the interview answers.
Employment Tribunal, Case No. 1803090/05, 2006.
A person with a severe stammer applied for a job as Performance and Information Officer with the Council. The Council and the tribunal accepted that the stammer was a disability within the Disability Discrimination Act 1995 (DDA).
The Council made adjustments to the recruitment process by allowing him to do a written equivalent of a short notice presentation exercise, and to give written answers to pre-set interview questions.
However the employment tribunal held that these adjustments were not sufficient. Firstly not enough time had been allowed for the written presentation exercise. Secondly the claimant should have been given details in advance of how the selection process would be run, and in particular should have been told how long he had to give written answers to the interview questions, so that he could manage his time.
The tribunal rejected an argument that he should have been allowed longer to write answers to the interview questions.
The tribunal considered the claimant would not have got the job anyway (so there was no compensation for loss of earnings), but it awarded £1000 compensation for injury to feelings.
The claimant applied for a post as a Performance and Information Officer with the Council. In part, the post involved providing training to Council staff on new collection processes when required, providing training and guidance to front-line staff on performance issues, and presenting management information in the form of reports and graphs using applications such as Powerpoint.
The claimant had a severe stammer. The Council and the tribunal accepted that this was a ‘disability’ within the DDA, and that the Council knew about it and was under a duty to make reasonable adjustments.
The claimant said on his application that he was disabled and there were arrangements he would like if he were interviewed. The Council seems not to have noted this. The letter inviting the claimant for an interview mentioned that before the formal interview there would be a short exercise lasting about half an hour.
Discussing adjustments for interview questions
The claimant accepted the interview offer and pointed out again that he had a disability due to stammering and needed adjustments to the recruitment process. “He pointed out that interview environments are tense and that tension increases the severity of stammering.” He referred the Council to three websites with information and advice on adjustments, including the British Stammering Association website. He also mentioned as a possible adjustment allowing a comparable written assesment as part of, or an alternative to, the oral interview.
The Council replied inviting the claimant to let them know of any special arrangements he would like, and offered a meeting to discuss this. The claimant replied by email, pointing out that since he did not know the design of the selection process it was difficult for him to suggest what adjustments would be appropriate. However, he suggested that if there were pre-set interview questions these could be asked him as part of a written assessment before an oral interview. He suggested he could be allocated three times the time allocated to other applicants, on the basis of an average person speaking around 150 words per minute and average typing speed being about 50 wpm. He suggested by way of example that if applicants were given eight questions, then assuming they would take about 3 minutes for each question he should be allocated 72 minutes (8 x 3 x 3), or about an hour. In a subsequent oral interview he could then answer questions following up or seeking clarification of his answers. He asked to be informed if changes to the interview arrangements were to be made. The tribunal noted that the claimant’s typing speed was actually 30 wpm.
The Council emailed back saying they intended to ask candidates to give a 10 minute presentation on a topic to be given to them when they arrived, with 30 minutes preparation time. The panel would then ask about nine questions. The Council said the presentation was because the job entailed providing training to front-line staff and managers, and regularly presenting performance information etc at meetings. The Council said they thought they could provide the additional time and equipment the claimant needed to respond to the questions, and proposed he arrived 90 minutes before the time previously set and they could give him a copy of the questions. The Council added that they would welcome any suggestions on how to approach the short notice presentaton.
The Council had allowed the 90 minutes as generally more time for the selection process for the claimant, and assumed his interview would consist only of the written responses. It subsequently decided not to ask follow-up questions of any of the other candidates either, to avoid disadvantaging the claimant. The claimant on the other hand understood the change to mean he would have 90 minutes to provide the written responses (based on his suggested calculation for nine questions), and he would then answer follow-up questions from the panel orally.
Discussing adjustments for presentation
The claimant emailed back saying Text-to-Speech (TTS) software could be used in making a presentation, though only if the text was pre-prepared. He queried why only 30 minutes preparation was allowed, since in the job one would have advance notice of training sessions and meetings. He also queried whether an oral presentation should be required, as the personnel specification for job did not refer to them.
The Council replied by email that the short notice presentation was relevant because the post required communicating clearly in a range of situations, including training and management meetings. It suggested the claimant have an extra 15 minutes (total 45 minutes) to prepare a written response to this exercise and pass it to the panel. The claimant emailed back saying he accepted this.
At the interview
At the interview, the claimant’s written response to the presentation exercise was collected after 45 minutes. The tribunal did not accept that the claimant had told the employer he had not finished, but said the employer must have noticed that his answer to the last of the three questions was incomplete.
The claimant was then given the written interview questions, and the employer came to collect them after 45 minutes. The claimant said he had not completed them and the employer agreed another 10 minutes. At the end of that time the claimant had still not completed them and the employer gave him another 5 minutes, totalling about an hour. The claimant pointed out that the questions were divided into sub-parts, totalling 21 if one treated each as a question, rather than the nine he expected. The claimant also said he thought he should have been given more time for the presentation. The claimant was then taken to meet the other two members of the selection panel where he was able to ask questions about the post – this was not part of the selection process.
The panel marked the candidates against two matricies, one for the presentation and one for the interiew. There were four posts available and the claimant ranked ninth, and so was not selected.
General issues on reasonable adjustments
By way of general points, the tribunal considered:
- It was reasonable for the Council to minimise the oral input the claimant had to make to the selection process, to minimise the disadvantage caused by the stammer. This was one suggestion on the BSA website and reflected in the claimant’s own emails.
- The Council was reasonable in basing time adjustments on the 3 to 1 ratio suggested by the claimant. It was not practicable to use a 5 to 1 ratio based on the claimant’s actual typing speed, because the Council did not know and could not reasonably have been expected to know that the ratio suggested by the claimant did not reflect his own speed.
Failure to allow enough time for presentation exercise
The tribunal accepted that oral presentation skills were necessary for the job and needed to be tested in the recruitment process. It would not have been reasonable to have all candidates give the presentation in writing to avoid disadvantage to the claimant.
The tribunal considered indeed that the Council could reasonably have required the claimant to do an oral presentation –
“although the Council would then have had to consider whether it would be reasonable to make an adjustment by dropping the short notice element of the presentation. If [the claimant] had been given advance notice of the question, he could have prepared his presentation with TTS software. Whether such an adjustment would have been reasonable would in part have depended on whether presentations on short notice were in fact part of the job duties and, if they were, whether an adjustment to remove the short notice element of the recruitment process would have been reasonable.”
However the tribunal did not explore this as the claimant’s representative did not challenge the use of a short notice presentation, only how it was required to be delivered. Also the evidence given did not cover the issue.
As it was, the Council had allowed the presentation to be in writing. The tribunal held that the 45 minutes the claimant had been allowed for this was not sufficient reasonable adjustment. The other job applicants were told they had 30 minutes preparation and 10 minutes to give the presentation, totalling 40 minutes. The claimant should have been given the same 30 minutes preparation time, but then 3 times 10 minutes (30 minutes) to write the presentation, applying the 3 to 1 ratio for writing versus speech. The employer said he had based the time on a previous exercise where applicants had taken 5-6 minutes on average to make their presentations. However the tribunal said that allowing the claimant only 5 minutes more than the candidates presenting orally was not enough.
This was so even though the employer reasonably believed in the light of the email exchange that the claimant had agreed the timing.
“It is the employer’s responsibility to decide upon and take whatever adjustment would be reasonable, and if it fails to do so it cannot avoid liability by saying that the disabled person agreed to the course of action.”
The claimant did not have time to complete his answers to the written presentation, and if he had had more time his answer to the last question would have been fuller and his score higher.
The tribunal rejected the claimant’s argument that the 60 minutes allowed to give the written responses was not enough by way of reasonable adjustment. The tribunal said that other candidates took an average of 20 minutes for their responses, so 60 minutes was reasonable applying the 3 to 1 ratio. However the claimant should have been told in advance that 60 minutes would be allowed – see below.
The tribunal also rejected the claimant’s argument that the Council had failed to make a reasonable adjustment in that it had given the claimant a time limit for responding, whereas other candidates did not have a time limit. The tribunal said it was not practicable to set no time limit at all. Also there was no disability-related discrimination as other candidates were under an implied time pressure, in that they would have known that they had to respond promptly to the questions they were posed at the interview.
Though the tribunal found the issue difficult to decide, it also rejected the claimant’s argument that he had been treated less favourably by being denied the opportunity to interact personally with the interview panel during the selection process. The tribunal accepted that the lack of this opportunity could in principle be less favourable treatment as personal interaction can be a significant part of interviewers’ assessment of a candidate, however standardised the questions. Also, in his emails the claimant had suggested an oral element. However, bearing in mind that none of the candidates were asked follow-up questions, the tribunal considered that the claimant’s lack of opportunity to interact was part and parcel of a reasonable adjustment to translate the interview process into written form.
Failure to give advance information
The tribunal considered that the Council should have made a reasonable adjustment by way of giving the claimant full details in advance of the way in which the selection process would be run. He could have managed his time more effectively when responding to the interview questions if he had known that he had 60 minutes, rather than the employer returning twice and allocating more time. Thus the Council was in breach of its reasonable adjustment duty in this respect, though there was no disability-related discrimination because the other candidates had less information on the process than the claimant did.
The tribunal accepted that difficulty in operating under time constraints because of his disability was at least part of the reason why the claimant’s answers to the final question in the presentation exercise and to some of the interview questions were of poorer quality than those of other candidates, and were therefore marked lower. To the extent that the impact of the time constraints could have been eased by the Council making the reasonable adjustments which the tribunal had held it should have made, the lower marks could not be justified and were disabilty-related discrimination.
General comments by the tribunal
The tribunal made some general comments which it hoped would be helpful to both parties in avoiding future claims:
It was clear the Council and managers involved were committed in principle to making reasonable adjustments for disabled candidates. Substantial adjustments were made for the claimant – arguably more substantial than could reasonably be expected as regards not requiring an oral presentation. However the Council failed to translate its commitment into practice “by not analysing the adjustments to the process, including timings, sufficiently thoroughly and then communicating them clearly to [the claimant]”.
Reasonable adjustments may be needed to all parts of the recruitment process, including the application itself or job duties forming the basis of the personnel specification. It is advisable for an employer to take up the issue of adjustments with a disabled applicant as soon as it becomes aware they may be required. If the employer leaves it to a short-listed candidate to flag up the need for adjustments, it may already have failed to meet its duty.
An employer must bear in mind that it is its responsibility to decide what it needs to do to comply with its reasonable adjustment duty.
“It will not necessarily be sufficient to make a particular adjustment just because it has been agreed with the job applicant, if a more substantial adjustment would in fact have been reasonable. A job applicant is in a vulnerable position, and may agree an adjustment that he or she knows is not adequate in order not to alienate the employer. Consultation with the applicant is, of course essential, as it is important not to make assumptions about what adjustment would or would not be effective. Ultimately, however, it is the employer’s responsibility to decide what adjustment should be made.”
A sensible employer will design the selection process to test whether applicants meet the personnel specification.
“However, where it becomes clear that a disabled applicant will be disadvantaged by some aspect of that process, this should prompt the employer to track back from the process to the personnel specification and the job description on which it is based, to consider whether or not it would be reasonable to make adjustments to that job description, and hence the personnel specification and selection process, to accommodate the disabled applicant.”
The claimant had preferred to correspond by email rather than meet the employer to discuss possible adjustments, saying email was his normal method of communication, and would leave a clear trail of correspondence to which he could refer back if necessary. The tribunal commented that while a job applicant with experience of discrimination may prefer to have a record of discussions so evidence is available if it is later necessary to challenge the process as discriminatory, in practical terms such a guarded approach, while understandable, may prove counter-constructive to the applicant, if the employer is genuinely committed to meeting its duty to make adjustments. “It may hinder clear and open communication and so reduce the opportunity to identify the adjustments that would be most effective and appropriate.”
The tribunal considered that had the claimant been given more time for the presentation and advance information on the process, he would have scored higher but would still not have been appointed to one of the four posts available. One factor it took into account was that the typing speed on which the timings were based was in fact faster than the claimant’s own typing speed, inevitably putting him under a time pressure of his own making.
However the claimant was awarded £1000 for injury to feelings. The tribunal also recommended that the Council write to him apologising for the discrimination, and assuring him that in any future job applications it would deal with him objectively and with due to regard to its DDA obligations.
Comments: Reasonable adjustments that should have been made
In summary, the tribunal held that
- the claimant should have been given more time to do the written equivalent of the presentation exercise, and
- the claimant should have been given advance details of how the selection process would be run. In particular, as regards giving written answers to interview questions, the applicant should have been told in advance how long he had.
Comments: Time allowed for answering interview questions
However, the tribunal did not agree that the claimant should have been given more than 60 minutes to write answers for the interview questions. It said that other candidates took an average of 20 minutes for their oral responses. Applying the 3 to 1 ratio for writing versus speech, it therefore agreed with the 60 minutes allowed.
This part of the tribunal’s decision seems to me difficult to justify. Bear in mind that future employment tribunals do not have to follow it.
Firstly, if the average time taken was 20 minutes, evidently some candidates took longer than 20 minutes. Very importantly, those who took 20 minutes or less did so because they chose to. Those who wanted more than the 20 minutes seem to have been allowed it. Only the claimant was given the equivalent of 20 minutes as a maximum time allowed. He was thus put at a disadvantage.
Further, the average time taken by other candidates will not be known until after all their interviews. It is therefore not a feasible way for an employer to determine in advance what time should be allowed a person who stammers answering questions in writing.
If there does need to be a maximum time for written answers (this is perhaps open to debate if there is none for oral interviews) a more appropriate criterion might be the maximum time interviews are expected to last. Eg if that was 30 minutes in this case and the ratio is 3 to 1 (but see below on ratio), it would correspond to 90 minutes written time. There should possibly be a small reduction in the 90 minutes, because the ratio should perhaps not be applied to the time taken to ask/read questions.
Comments: What ratio for writing versus speech?
The tribunal seems to imply that had the claimant told the employer his actual typing speed, it may well have been reasonable for that to form the basis of the time limits, giving a 5 to 1 ratio in this case. Also since the idea of reasonable adjustments is, where possible, to eliminate the disadavantage, it seems appropriate that the person’s actual writing/typing speed should be used.
The lesson for people who stammer wishing to give answers in writing seems to be to give their actual typing (or writing) speed, so they have a better chance of an adjustment being made that genuinely gives them enough time to write what they need to. Say this resulted in a period of 2 hours 30 minutes, based on a ratio of 5 to 1 in the light of actual typing speed. This would admittedly be quite a long time and what is reasonable will depend in the circumstances, but it seems to me that a tribunal may well consider this kind of time as reasonable in an appropriate case if it is what is needed to put the applicant who stammers on a ‘level playing field’ with others. Perhaps a short tea break should be allowed if the time is that long. Also the time is only a maximum – as with oral interviewees the applicant need not use it all.
Presumbly it would also be reasonable (if there has to be a time limit) for those with a faster than average typing speed to have less time to type answers.
Comments: Getting clear in advance
Although it was the Council’s responsibility to give the claimant fuller advance information, a person who stammers may find it helpful to try and ensure that he clarifies in advance what the whole process will be and what adjustments will be made, including any time limits. The present case does illustrate possible difficulties of this though, such as being told you are getting 9 questions where there are actually 21 sub-parts.
Comments: Further consequences of not giving advance information
The tribunal perhaps should have considered more wide-ranging consequences of the claimant not being given advance information on how his selection process would run. Had the claimant been told he would have 60 minutes to answer 21 questions with no opportunity in front of the panel for follow-up, then particularly given his actual typing to speech ratio of 5 to 1 he would very likely have concluded that 60 minutes was insufficient time and sought a change.
Comments: Lack of opportunity to interact with panel
The tribunal accepted that lack of opportunity to interact personally with the interview panel as part of the selection process could in principle be less favourable treatment. Personal interaction could be a significant part of the interviewers’ assessment of a candidate. However bearing in mind that none of the other candidates were asked follow-up questions, the tribunal considered that the claimant’s lack of opportunity to interact was not less favourable treatment as it was part and parcel of a reasonable adjustment to translate the interview process into written form. But the tribunal found it a difficult issue.
That decision is not a binding precedent, and even apart from that it can be argued that the decision has little if any relevance for future cases:
- The tribunal said it was relevant that none of the other candidates were asked follow-up questions (the Council had taken this approach to avoid disadvantaging the claimant). Normally at least some other candidates will be asked one or more follow-ups.
- The tribunal was considering whether the lack of opportunity to interact was ‘less favourable treatment’ under the Disability Discrimination Act 1995. The equivalent provision in the Equality Act 2010 is s.15 (disability arising from discrimination) which only requires ‘unfavourable treatment’. Under s.15 the claimant does not need to have been treated less favourably than other job applicants.
- The tribunal did not consider whether the lack of opportunity to interact was a failure to make reasonable adjustments. I suggest that when reasonable adjustments are considered, it would be very odd to say that if a possible reasonable adjustment (written answers for the whole interview) itself creates a disadvantage (lack of personal interaction), there is no obligation to instead adopt an alternative reasonable adjustment (written answers with oral follow-ups) which would avoid the disadvantage compared with other job applicants.
In my view it may well have been a reasonable adjustment, avoiding this disadvantage of the claimant not having personal interaction with the interviewers, to follow the claimant’s own suggestion and give the panel the opportunity to ask him follow-up questions face-to-face. Under the Equality Act 2010, the lack of personal interaction might also be a breach of s.15 (disability arising from discrimination).
The employer would have to think though about seeking to put the applicant who stammers on an equal footing with other applicants as regards these follow-up questions, through such things as extra time, and perhaps being allowed to subsequently add in writing to his oral answers.
Comments: Adjustment may not be sufficient even if agreed by claimant
It is welcome that tribunal decided that an adjustment may not be substantial enough even if the claimant has agreed it.
Comments: Adjustments are responsibility of employer
As in Y v Calderdale Council, the tribunal correctly pointed out that adjustments are the responsibility of the employer, though of course there should be consultation with the job applicant.
Assuming the employer is or should be aware of the disability and disadvantage, the duty is not subject to the applicant suggesting a reasonable adjustment. The tribunal could perhaps have made more of the fact that the Council was not exactly pro-active in pursuing adjustments, leaving it down to the claimant to raise the issue more than once and to make all the suggestions.
Whether oral presentation could have been required
The discussion on whether the Council could reasonably have refused to allow the presentation exercise to be done in writing is interesting. It seems right that the tribunal focused on what would be required for the job (though there is the puzzling issue of whether the personnel specification adequately reflected this). Also there was an acknowledgement that it might be appropriate to make reasonable adjustments to presentations in the job, such as using text-to-speech software if practicable, which it might then be reasonable to reflect in the exercise on recruitment. Also the example at para 7.25 of the 2004 Employment Code of Practice is relevant:
“An employer sets candidates a short oral test. An applicant is disabled by a severe stammer, but only under stress. It is likely to be a reasonable adjustment to allow her more time to complete the test. Alternatively, it may be a reasonable adjustment to give the test in written form instead – though not if excellent oral communication skills are necessary for the job and assessing those skills was the purpose of the test.”
Code of Practice: Employment and Occupation, 2004. Para. 7.25. Update in 2021: This Code is no longer in force.
Comments: Claimant prefering email to meeting
As regards the tribunal’s comment on this, it should be stressed that the tribunal’s findings criticised the Council’s failure to communicate rather than the claimant’s. Also, while I would not want to dissuade people from meetings, the tribunal perhaps did not appreciate how email may be a much easier way of communicating than speech for a person with a severe stammer. Finally, it is by no means clear that a meeting would have reached a less ambiguous result.
Comments: Each case depending on facts
Clearly each case depends on the facts. What adjustments are reasonable will depend on the circumstances, and for example some people who stammer will prefer not to give written answers but to have an oral job interview, where it may be appropriate to allow longer and perhaps make other adjustments, such as to address the issue of the person limiting their oral responses.
The claimant argues, for example, that he was put under time pressure to which other candidates were not subjected, and gives a somewhat different account of what happened at the interview from what might be assumed from reading the Tribunal decision.