Employment Tribunal, Case No. 1806514/02, July 2003.
An employment tribunal found that an employer had not made sufficient reasonable adjustments to the recruitment process for a person who stammers. More time was allowed for the interview, but the amount of information the person was able to convey compared to other candidates was still much reduced. The tribunal suggested other adjustments the Council could have considered.
A job applicant had a stammer. In his job application he said he had a stammer, but did not request adjustments where the form asked about them.
The tribunal found that the Council had not followed its own internal Code in ascertaining whether disabled candidates shortlisted for interview needed adjustments, but had relied entirely upon the applicant to notify it of any disadvantage to him which he was to anticipate in the interview arrangements.
The first stage of the recruitment process was a written test. The second stage was an oral presentation and the applicant used ‘text to speech’ software. He claimed no discrimination at either of these stages.
The third and final stage, a ‘question and answer’ session, was particularly important under the scoring system. It was obvious to the interviewers by then that the applicant was under a substantial disadvantage in the session due to his severe stammer. The Council did allow more time for the interview. Even so, the amount of information the applicant was able to convey compared to other candidates was much reduced. The tribunal found that the Council failed to make sufficient reasonable adjustments in relation to this session, and made suggestions as to what the Council could have done.
The tribunal awarded the applicant compensation.
The claimant applied for a job as Census Support Officer at the Council. He stated on the application form that he was disabled by reason of “stammering”, but gave no indication of its severity. He left blank the question: “Do you have any special requirements the Council needs to consider if you are shortlisted for interview?” The claimant also confirmed his perception of himself as disabled on an equal opportunities monitoring form he completed at the same time.
The tribunal did not have to consider whether the claimant qualified as disabled within the Disability Discrimination Act 1995 (DDA), because the Council accepted that he did.
The recruitment process
The Council considered the claimant a strong candidate on paper and shortlisted him for interview. (In the circumstances the Council were required to interview him anyway under the ‘two ticks’ scheme, ‘Positive about Disabled People’, but would have shortlisted him even apart from that because of his qualifications and experience.) He was one of only four candidates actually interviewed.
The two Council officers concerned decided that the recruitment process would consist of three elements:
- a written test of aptitude in relation to the analysis and interpretation of data;
- a short oral presentation on two aspects of an interview Presentation Topic;
- a ‘question and answer’ session, conducted by both officers with some pre-set questions (and any supplementary questions).
The tribunal found that the Council had not complied with its own internal Code of Practice as regards ascertaining whether the claimant required any special assistance at the interview; the internal Code said that this should be picked up by writing or speaking to the shortlisted disabled applicant. The Council relied upon a standard issue letter inviting the claimant for interview and making reference only to ‘stair access’ for the physically disabled but otherwise not complying with its Code save to invite candidates to telephone if they are unable attend or “have any queries on the arrangements for the interview”. Accordingly, the tribunal found, the Council had not planned in advance, on the basis of full information, to accommodate the claimant’s disability but relied entirely upon him to notify them of any disadvantage to him which he was to anticipate in the interview arrangements. This lack of understanding and planning led to a lack of flexibility in the approach of the two interviewers to their consideration of the claimant’s candidature, as set out below. They persisted with the pre-set formula of the interviews.
The tribunal commented that it is not uncommon for a disabled applicant for a job to minimise, on the application form, the extent of his/her disability so as to increase his/her chances of being shortlisted. The claimant had told the tribunal:
“In the past my experience has been that if I’ve requested adjustments I have not been shortlisted.”
The tribunal found that oral skills were not crucial to the post and the claimant’s lack of fluidity of speech could have been compensated for by reasonable adjustments to the job and the working environment.
The claimant made the oral presentation using ‘text to speech’ software on his laptop computer with two mini-speakers. This involved the applicant typing in what he wanted to say on the computer, which then ‘translates’ the text into mechanised speech. This immediately put the two interviewers on notice of the severity of the disability. He used the same mechanism in giving part of his evidence to the tribunal.
The claimant conceded that he suffered no discrimination in completing the written test or the oral presentation. In the written test, he failed to answer the second part of it and recorded the lowest score of the four candidates. The claimant scored “very good” on his “Familiarity with censuses” judged from the oral presentation, but “poor” as regards “Presentation Skills” judged from the oral presentation and the question and answer session. The tribunal found that the question and answers element was highly relevant to the scoring of eight out of ten of the essential criteria listed (ie all but “Familiarity with Censuses”, and “Aptitude and Diligence” which was judged by the written test), and consequently the question and answer session was weighted heavily in the total selection process. This is important because the tribunal held that the claimant did suffer discrimination in relation to the question and answer session, due to failure to make reasonable adjustments there – see below.
Question and Answer Session – failure to make reasonable adjustments
The tribunal found that by the time the two officers came to ask the standard pre-set questions, it was obvious and certain to both of them that the claimant was at a substantial disadvantage in this third stage. His stammer was severe, sometimes resulting in a prolonged and almost total block with constriction of the throat and a blocking by the tongue of the airways. This occurred particularly under stress and in unfamiliar situations. One of the officers himself had a stepson with a moderate stammer and was aware of the high variability of speech difficulty arising from stammering between different people and in different situations.
The claimant did not use text to speech technology during the question and answer session. It would have been slow and cumbersome – in contrast to the pre-prepared presentation he would have had to type in the answer to each question. The interviewers did not understand or enquire about the extent of the technology’s usefulness in communicating with the claimant in the question and answer situation. They told the tribunal that they relied on the claimant unilaterally overcoming his own disability at that stage by suggesting the use of the laptop or some similar aid.
The tribunal accepted the force of the claimant’s argument that it was the Council which understood the exact purpose and nature of the recruitment process and that the claimant could not be expected to suggest all his own adjustments to cope with a process about which he was not fully informed. For example he did not know the importance of oral skills in the job.
The tribunal was satisfied that during the question and answer session the claimant was unable to convey all he wanted to say. The amount of information he was able to convey compared to other candidates was much reduced. The session was intended to build on the application form and obtain verification and detail of each candidate’s experience, and was crucial. The claimant found it increasingly difficult as the interview went on. One officer commented that he couldn’t say whether the claimant didn’t answer because he had nothing else to say or because he couldn’t say it; the claimant gave no indication allowing them to get a clear picture of his skills or to explore the application form; they went as far as they could and had to assess on the information available. The other officer commented that he could see no way of intervening; to acknowledge the claimant’s difficulty was not appropriate; it did not occur to him to have a break; no alternative arrangements were in place; they had done all they felt they could.
The claimant was questioned for 45-60 minutes (his was the last interview of the day). The other three candidates were questioned for 30-40 minutes. The Council argued that suitable adjustments were made, but certainly his question and answer session was not substantially longer so as to allow him to fully communicate despite his speech difficulties. The tribunal fully accepted that he received sympathetic and well-meaning treatment from the two interviewers who tried to give him time to answer; refrained from interrupting him and made some gentle attempts to probe his answers but this was not sufficient to comply with the employer’s duty to make reasonable adjustments under s.6 DDA. The Council was in breach of that duty, and therefore liable for discrimination under s.5(2).
As to what the Council could have done, the tribunal considered the examples of possible steps in DDA s.6(3)(h)(j) and (k) apposite to the case (acquiring or modifying equipment, modifying procedures for testing or assessment, and providing a reader or interpreter). Bearing in mind also s.6(4) DDA (factors relevant in determining what is reasonable), the tribunal said the Council could for example, without disruption or significant expense, have taken immediate practicable action to prevent the disadvantage suffered by the claimant by adjourning the question and answer session and devising, with the co-operation of the claimant, a suitable format for this element of the recruitment process which would have given the claimant an equal opportunity to that of the other candidates:
- written answers could have been sought to the pre-set questions
- more time could have been allocated to allow the use of the ‘text to speech’ technology
- expert advice could have been sought as to the availability and usability of other computerised aids, e.g. text to screen, of which the Council’s Personnel section was aware
- the question and answer session could then have been planned in advance with a flexible approach as recommended by the Council’s own internal Code of Practice.
Failure to make adjustments not ‘justified’
The Council argued that its failure to make adjustments was justified under s.5(4) DDA. However, the tribunal found that the Council’s complaint that the claimant “concealed” the extent of his disability in order to deliberately mislead the Council was not relevant at the material point in time, ie before and during the question and answer session. At that point the two interviewers were unavoidably faced with the duty to make adjustments in a situation where the claimant’s disability could not have been more obvious. Irrespective of any desire to conceal it on his part, it could not be hidden by then.
The tribunal was able to distinguish the present case from Ridout v TC Group, where the claimant, suffering from a rare form of epilepsy, gave little or no indication in her oral interview that she was ‘struggling’.
No ‘less favourable treatment’ discrimination under s.5(1) DDA
Broadly, discrimination under s.5(1) DDA was where an employer treats a person less favourably for a reason related to their disability.
The tribunal was not satisfied that the claimant failed to get the job for a reason related to his disability. Accordingly there was no discrimination within s.5(1). The short-listing and three-stage selection process was a standardised, pre-set, procedure applied universally to all applicants for the post. The claimant performed worst in the written test. The two interviewers did not regard oral skills as so essential to the post that they, without further thought, improperly rejected the claimant on grounds of his failure to demonstrate such skills without more.
The applicant was awarded compensation of £14,207.41. This included (a) compensation for loss of earnings, discounted by 50% on the basis that the claimant would have had a 50-50 chance of getting the job had the discrimination not occurred, and (b) £3,000 compensation for injury to feelings.
The tribunal declined to exercise its discretion to make a recommendation to the Council.
The case is not a binding precedent. However, it is interesting that the tribunal seemed willing to countenance as reasonable fairly significant adjustments even at that late stage, including adjournment of the question and answer session to devise suitable arrangements.
The tribunal was also clear that the onus was on the employer, given the employer’s knowledge of the stammer and its effect by the time of the question and answer session. Its duty to make adjustments was not subject to suggestions being made by the claimant as to what could be done. See Reasonable adjustment rules: employment>Onus is on employer.
Despite the favourable decision in this case, an employer may still have greater obligations to make adjustments if arrangements can be made beforehand. Advance notice to the employer may make it more likely to be reasonable for the employer to make particular adjustments. Perhaps more importantly, advance notice may increase the likelihood of adequate adjustments actually being made. If the employer does not raise the issue, a person who stammers could raise it when he has been sent the invitation to interview. See Recruitment: Should I tell the employer I stammer? and Knowledge of disability>Reasonableness of adjustments: relevance of advance knowledge.
Claimant’s suggested adjustments
Following the tribunal decision, the claimant suggested the following as a reasonable adjustment appropriate to this case:
- To allow a written assessment for the pre-set interview questions, that would equate in length to providing oral responses afforded to other candidates.
- To then have an oral interview, enabling the candidate and panel members to meet and allow the panel to ask follow-up questions, and give the candidate an opportunity to ask questions.
This would have the advantage for the candidate of significantly reducing the pressure of speaking within a stressful situation, and hence reducing the anxiety / ‘fear’ of interviews. Also it importantly allows the oral interview (stage 2) to function as a means to assess oral skills if this was, in part, the purpose of the form of assessment.