Y v West Yorkshire Combined Authority

A claimant who stammers argued that the employer should have made further adjustments to an interview and presentation, for example expressly telling him he had extra time, follow-up questions where his answers were unduly short, and arrangements to enable him to keep eye contact. The tribunal held that on the facts the adjustments which had been made were sufficient.

2020, Employment Tribunal. Link to full Tribunal decision (gov.uk).

Summary

A claimant who stammers argued that the employer should have made further adjustments to an interview and presentation, for example expressly telling him he had extra time, follow-up questions where his answers were unduly short, and arrangements to enable him to keep eye contact.

The tribunal held that on the facts the adjustments which the employer had made were sufficient, eg extra time and the employer had asked enough follow-ups.

The tribunal also dismissed a claim under s.15 EqA that being rejected for the job was because of the content of what he said which arose from the stammer; the tribunal decided the claimant had said what he wanted to.

The tribunal found too that on the facts the extra time he took for the presentation and his oral communication skills were not a factor in the employer’s scoring.

There is a summary of my comments on this case below, some of them quite technical. A few points to particularly bring out:

• The tribunal decision is very much dependent on the facts as found by the tribunal, albeit one could criticise those findings. For example the tribunal found that the extra time for the presentation and his oral communication skills were not a factor in the employer’s scoring.
• The claimant had requested in advance that the employer make certain adjustments, but was arguing to the tribunal that more should have been made. Although the reasonable adjustment duty is not limited to things requested in advance, in practice it is likely to make sense to tell the employer in advance what specific adjustments you want so far as possible. See below My comments>Some lessons, and separate page Should I tell the employer I stammer? which includes a list of things to consider telling the employer.
• Part of that list of things to consider telling the employer is any non-obvious substantial disadvantages which the adjustments aim to address. In this case, even though the employer knew of the stammer, the tribunal decided the employer did not have actual or constructive knowledge that what the claimant could say in his presentation might be limited. Oddly this was even though the claimant had specifically requested that the panel ask follow-up questions in the interview, implying that what he could say might be limited. One might argue the decision is flawed, but it illustrates that one cannot assume a tribunal will find the employer has relevant knowledge.
• It may be a good idea to either invite discussion of adjustments with the employer or at least make clear you are happy to discuss them: Should I tell the employer I stammer?>4. Invite discussion. In this case, it seems the interviewers were not sure whether the claimant would be happy to discuss adjustments, since they had read that stammering is of a sensitive personal nature.
• One adjustment which the claimant argued the employer should have made aimed to help him maintain eye contact with someone throughout the interview. As well as some comments below, I’ve updated my section on Examples of reasonable adjustments: Recruitment>Oral interview: eye contact in the light of this case.

Facts

The claimant applied for a job as a data analyst. He was invited for an interview, where he would also have to give presentation of “10 minutes max”.

The claimant replied saying he had a disability and would need some adjustments. He gave a link to a page on the British Stammering Association website, requested that at the interview “the panel actively asks follow-up questions particularly if my answers appear overly short or concise”, and said that for his presentation he would use PowerPoint slides and it would be more or an informal discussion.

The employer was unable to use the BSA link (this was about the time when BSA revamped its website and changed its web address). However the employer found the BSA website and reviewed some web pages there, including recommendations of possible reasonable adjustments. The employer noted that the impact of a stammer may vary from person to person, and took on board BSA website advice that stammering is of a sensitive personal nature. It took the view that the individual was best placed to suggest adjustments, while accepting that the employer was ultimately responsible. The two interviewers discussed adjustments and decided:

• they would make the adjustments requested in the claimant’s email, asking follow-up questions if answers appeared overly short or concise and treating the presentation as an “informal discussion”; and
• the claimant would be allowed extra time during the interview if required. They did not change the interview schedule as they had allowed a gap of 15 minutes between interviews. They had scheduled interviews hourly, and estimated 10 minutes for the presentation and 30 minutes for competency-based questions.

The employer said nothing to the claimant about adjustments. Nor was there any explicit discussion of adjustments during the interview. The interviewers did not mention making adjustments because they were mindful it might be a sensitive personal issue which the claimant might not wish to discuss during the interview itself.

The presentation and each of the 10 questions were scored out of a maximum of 3 points (maximum score 33).

The claimant’s presentation lasted 20 minutes. The interviewers did not try to stop him after 10 minutes. The claimant accepted he had the opportunity to express the content he wanted to. As to the interview, the tribunal accepted the interviewers’ evidence that the claimant seemed to give full answers and they did ask follow-up questions where appropriate. The tribunal said the claimant did not identify any specific points that he could have raised in the interview if he had been asked further follow-up questions. However in hindsight the interviewers regretted not replying to his email on adjustments, and not discussing adjustments before or at the start of the interview. The claimant said he assumed the adjustments he requested would be made.

The claimant did not get the job. He came joint 4th/5th with 17.75 points. The successful candidate scored 23.5 points. For the presentation the claimant scored 1 mark from one interviewer and zero from the other, an average of 0.5 out of a maximum of 3. Both interviewers’ notes commented that the claimant’s presentation ran much longer than 10 minutes, but also made various other criticisms: they considered the presentation did not meet the brief, and that the slides did not meet the standards they expected for visualisation of data. The tribunal accepted that the interviewers did not take the length of the presentation into account in their scoring, and that the references in their notes were “simply a record of the time taken”.

Marking of communications skills?

The role profile referred to “communication skills” but the marking criteria did not specifically allocate any marks for these. However the interviewers made notes on communication skills: the successful candidate had “good clear communication skills”, while the claimant’s “comms skills were ok”.

The tribunal accepted the employer’s evidence that “communication skills” were not limited to oral skills but included “the ability to enagage with customers, build relationships with colleagues and stakeholders, to prepare reports and prepare data visualisations”. The employer said and the tribunal accepted that candidates could demonstrate these skills in the content of their presentations and in responses to interview questions, but no specific marks were given for these skills because “there were no marks allocated to communication skills in the marking criteria as a standalone criterion”.

Claims

From the tribunal decision, the claimant seems to have made the following claims:

• that there was a breach of s.15 EqA (discrimination arising from disability) in that he was treated unfavourably because of “the content, and quality of that content communicated at interview”, which arose from his stammer, and that this was not justified;
• that there was a failure to make reasonable adjustments in that the employer did not make the following adjustments:
  • identifying the actual communication needs of the data analyst role and/or to consider how this was to be assessed;
  • arranging for and/or explicitly offering an extended interview prior to the interview date (the claimant stated in evidence that he believed they were under implicit time pressure in the interview);
  • swapping the claimant’s interview slot with that of the last candidate;
  • arranging for the panel actively asking follow up questions and/or to expand/clarify the content and/or quality of the claimant’s oral responses;
  • arranging for a scribe to record oral answers, removing the need for the panel to make written notes, and enabling natural eye contact to be unbroken when the claimant was providing his responses.

Held: the tribunal dismissed all the claims.

Decision on s.15 claim

This was the claim that there was a breach of s.15 EqA (discrimination arising from disability) in that he was treated unfavourably because of “the content, and quality of that content communicated at interview”, which arose from his stammer, and this was not justified.

The tribunal concluded that “the content, and quality of that content communicated at interview” was not something arising in consequence of the claimant’s disability. As regards the oral presentation, the reason he received a low score was because he did not meet the presentation brief. The tribunal found that the length of the claimant’s presentation did not affect his score. The claimant stated in his oral evidence that, broadly speaking, he was able to communicate the content of his presentation that he wanted to get across during the interview.

As regards the answers to interview questions, the tribunal accepted the interviewers’ evidence that the claimant provided what appeared to be full answers to their questions during the interview and that they asked follow up questions where appropriate. The claimant did not provide any specific examples of what he would have said, if additional questions had been asked.

The tribunal also noted that the claimant scored significantly lower than the successful candidate. For example, even if the claimant had scored full points for his oral presentation, he would have had a total score of 20.25 points, which would have put in him in third place.

Since the rejection of the claimant was not because of something arising from his disability, it was irrelevant whether the unfavourable treatment was justified, ie whether the employer could show the rejection was a proportionate means of achieving a legitimate aim.

Decision on reasonable adjustments

Where a provision, criterion or practice applied by or on behalf of an employer places 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 to have to take to avoid the disadvantage (EqA s.20 and Sch 8 para 2). This is subject to a knowledge defence (below). See generally Reasonable adjustments: employment.

The provision, criterion or practice (“PCP”) specified by the claimant and accepted by the employer was that the employer required candidates to undertake an oral presentation and answer oral questions during the interview process for the role of data analyst.

Substantial disadvantage

The tribunal first considered whether the employer’s requirement that candidates undertake an oral presentation and answer oral questions during the interview process put the claimant at a substantial disadvantage in comparison to non-disabled persons. The substantial disadvantages argued by the claimant were that:

1. he takes more time to communicate;
2. he experienced difficulties during his oral presentation, relating to both his communication skills and the oral content of his presentation; and
3. his perception that his difficulties had a negative impact on the employer’s assessment of his responses to their interview questions, relating to both his communication skills and the content of his responses.

The tribunal accepted that the claimant’s stammer meant that he took more time to communicate with the employer during the interview, and that he “experienced difficulties relating to his speech fluency than non-disabled persons during his oral presentation” (sic). So the tribunal accepted disadvantage 1 and apparently part of disadvantage 2.

As to disadvantage 3, the tribunal did not not address the claimant’s “perception” being a substantial disadvantage, but said that contrary to his perception, his difficulties did not have a negative impact on the employer’s assessment of his responses to their interview questions: the tribunal found his communication skills were not scored as part of his responses to interview questions, and the claimant appeared to have provided full responses to the interview questions with assistance of follow-up questions where appropriate.

Knowledge of employer

Did the employer know (or could the employer reasonably be expected to have known) that the claimant was likely to be at a substantial disadvantage compared to persons who are not disabled? If not the employer would have a defence: see below My comments>Employer’s knowledge.

The tribunal concluded that the employer knew that the claimant was likely to be at a substantial disadvantage compared to persons who are not disabled in relation to both the time he took to communicate and his speech fluency during his presentation.

However, the tribunal found that the employer did not know and could not reasonably be expected to have known that the claimant had any difficulties in expressing the oral content of his presentation, because the claimant’s had not raised concerns with presenting other than requesting it be an informal discussion, the claimant did not request any alternative to the oral presentation such as providing a written report, and the claimant said in evidence that he was able to express the content that he wished to during his presentation.

Was there a failure to make the adjustments claimed? If so would the adjustment have removed the substantial disadvantage?

First the tribunal commented that “the parties should have discussed potential adjustments for the claimant (whether orally or by email), in advance of or at the start of the claimant’s interview as a matter of good practice”. It also noted though that a failure to discuss reasonable adjustments is not a failure to make reasonable adjustments under the EqA, as per the case of Tarbuck. (Para 67 of tribunal decision)

As to individual adjustments:

(i) Identifying the actual communication needs of the Data Analyst role and/or to consider how this was to be assessed

The tribunal found the employer did assess the communication needs of the data analyst role, and the “communication skills” considered were not limited to oral communication. No additional points were awarded for communication skills (para 67).

(ii) Arranging for and/or explicitly offering an extended interview prior to the interview date

Though the employer did not explicitly offer to extend the claimant’s interview, his interview lasted for around an hour and the employer did not prevent him from completing his presentation or place any time limit on the question and answer session (para 69).

The tribunal found that the employer allowed the claimant’s interview to continue for as long as required. An explicit offer of an extended interview would not have removed any substantial disadvantage suffered by the claimant (para 73).

(iii) Swapping the claimant’s interview slot with that of the last candidate

The employer did not change the claimant’s interview slot, which was the slot just before the last candidate was interviewed (para 70). However the tribunal found that the employer did allow the claimant’s interview to continue for as long as required, and concluded that swapping the claimant’s interview slot with that of the last candidate would not have removed any substantial disadvantage suffered by the claimant (para 74).

(iv) Arranging for the panel actively asking follow up questions and/or to expand/clarify the content and/or quality of the claimant’s oral responses

The tribunal found the interviewers did ask follow up questions and discussed the claimant’s oral responses where appropriate (para 71).

(v) Arranging for a scribe to record oral answers, removing the need for the panel to make written notes, and enabling natural eye contact to be unbroken when the claimant was providing his responses

The employer did not arrange for a scribe to record the claimant’s oral answers (para 72). However the tribunal found that the two interviewers took it in turns to ask questions and write notes, enabling the other to maintain natural eye contact whilst the claimant was providing his responses. The tribunal concluded that arranging for a scribe would not have removed any substantial disadvantage suffered by the claimant (para 75).

The tribunal had previously said (at para 34) that it was highly unlikely that the interviewers discussed adjustments to their note-taking and eye contact practices for the claimant’s interview. However, the tribunal accepted the interviewers’ evidence that “normally one of them would ask questions (and maintain natural eye contact) whilst the other took notes during each candidate’s interview.”

Whether the adjustments would have been reasonable

The tribunal said it did not need to consider this issue in light of its conclusions above on ‘substantial disadvantage’ and whether the adjustments would have removed any such substantial disadvantage.

My comments

Comments: summary

• I outline below some lessons from the case, such as where possible letting the employer know in advance of any adjustments one wants, perhaps telling it about any non-obvious substantial disadvantage, and making clear one is happy to discuss adjustments.
• The decision very much depends on the particular findings of fact by the tribunal: that oral communication was not a factor in how the employer scored the claimant, and the claimant was able to say what he wanted. Below Findings of fact.
• The claimant’s s.15 argument seems to have been that he was rejected because what he could say was limited by his stammer. The claimant could have argued – but evidently did not – that for example there was a breach of s.15 in that his rejection was at least in part because of his oral communication skills arising from the stammer. However it looks like the tribunal would have rejected this argument too. Below S.15 claim.
• As regards reasonable adjustments, I suggest that the tribunal should have disregarded the reasonable adjustments made by the employer (such as extra time and follow up questions) when considering the provision, criterion or practice of requiring candidates to undertake an oral presentation and answer oral questions during the interview process. Below Should disregard reasonable adjustments when identifying the PCP.
• The tribunal said it would be good practice to discuss adjustments with the claimant, and the employer regretted not doing so. However if the employer should reasonably have had this conversation about adjustments with the claimant, then legally it would probably have constructive knowledge of the substantial disadvantages (and it arguably knew of them anyway). Below Employer’s knowledge.
• It is not clear why the tribunal considered whether the adjustments would have removed the substantial disadvantage suffered by the claimant (below).
• Despite all these points on reasonable adjustments, it seems quite possible that the tribunal would have reached the same conclusion anyway, given its findings of fact: below Did all this make a difference to the result of the decision on reasonable adjustments?
• I make some particular comments below on Eye contact and arranging for a scribe. The tribunal’s finding that the interviewers maintained eye contact seems perhaps unlikely, but I’m not sure a scribe would be the best way to solve the issue.

Some lessons (comments)

Whatever the legal arguments about employers having an obligation to take the initiative and perhaps needing to consult with the person who stammers, it is likely to make sense in practice (and to improve the legal argument) for someone who stammers to specifically ask in advance of the interview for any adjustments they want, where this is possible. The Stamma/BSA website looked at by the employer and quoted by the tribunal listed only some adjustments. If you can, make sure the employer knows what you want them to do. See Should I tell the employer I stammer?>2. Specify what adjustments you want.

Similarly, it may help one’s legal rights to ensure the employer knows what substantial disadvantage the adjustment is seeking to address. See Should I tell the employer I stammer?>3. Consider telling the employer what the ‘substantial disadvantage’ is.

It may help too for the person who stammers to specifically invite the employer to discuss with them what adjustments are required. In this case it sounds like the interviewers were not sure whether the individual would be happy to discuss this. I doubt the employer could successfully have argued that its concern meant it was not reasonably expected to make enquiries about what adjustments were required (below Employer’s knowledge). However saying you are happy to discuss it reduces any possible argument to that effect still further, and should make it more likely that the employer will in fact discuss adjustments. See Should I tell the employer I stammer?>4. Invite discussion.

The person who stammers may not know the recruitment arrangements, so will not necessarily know what adjustments to suggest. Here a discussion may be particularly important.

More: Should I tell the employer I stammer?

I suggest a lesson from this case for employers is to bear in mind is the risk of claims if they do not properly consult the disabled person on what adjustments are required, unless the individual indicates they do not want to discuss it.

Findings of fact (comments)

This case turns first and foremost on the tribunal’s findings of fact in the particular case, especially that:

• the length of time the claimant took for the presentation and his oral communication skills were not a factor in the employer’s marking (para 49, 54-56, and 64), and
• the claimant was able to say what he wanted, so his answers and presentation were not limited by his stammer (para 60).

One can wonder whether those were reasonable conclusions by the tribunal, eg given the interviewers’ notes about his overrunning in the presentation (para 47-48) and his communication skills (para 54). Also see below on the findings of fact regarding eye contact. However it is the tribunal which heard the evidence, and it is normally difficult to appeal findings of fact. In any event, there is no suggestion that on different findings of fact a claimant would not have a valid claim.

S.15 claim (comments)

There can be unlawful discrimination under s.15 EqA, known as discrimination arising from disability, where an employer etc treats a disabled person unfavourably “because of something arising in consequence of” the disability. The employer has defence if it shows justification, or that it could not reasonably have known of the disability,

The claimant’s s.15 argument was apparently that he was treated unfavourably because of “the content, and quality of that content communicated at interview”, which arose from his stammer. His argument seems to have been that because of the stammer he only gave limited responses, and could not communicate enough to put him on a level playing field with other candidates: see Examples of reasonable adjustments: Recruitment>Oral interview: Limited responses. The tribunal rejected this on the basis that on the facts (in the tribunal’s view) his responses and presentation had not in fact been limited by his stammer.

The claimant could have argued – but evidently did not – that there was a breach of s.15 in that his rejection for the job was at least in part because of his oral communication skills (or for example his ability to communicate orally), arising from the stammer. In other words it could be argued that his oral communication skills were the “something” arising from the disability. However it looks like the tribunal would have rejected this argument, as it did not accept the claimant’s oral communication skills played a part in the employer’s decision. Arguably the interviewers’ written notes on his going over time for the presentation and on his communication skills (para 47-48, para 54) might have been enough to shift the burden of proof to the employer to show they did not play a part in the decision; however the tribunal did not make clear where it saw the burden of proof as lying so we don’t know if that would have made a difference.

In the alternative, the claimant could have argued that his rejection was because of receiving a low score (the “something”) and that this low score had a causal link to stammer so it was something “arising from his disability”. This would open a wider range of causal links with the stammer. However it seems likely the tribunal would have rejected this argument too, on the basis of the facts found by the tribunal.

Reasonable adjustments: Should disregard reasonable adjustments when identifying the PCP (comments)

I suggest that the employment tribunal took the wrong approach to identifying the provision, criterion or practice (PCP). The PCP was agreed to be that the employer required candidates to undertake an oral presentation and answer oral questions during the interview process. However it seems the PCP should be the general practice etc before adjustments are made. For example in Finnigan v Northumbria Police the Court of Appeal said the PCP “includes all practices and procedures which apply to everyone, but excludes the adjustments.” See further Reasonable adjustment rules: employment>PCP is the general practice etc before adjustments are made.

Where does the tribunal seem to have taken this (I would say) wrong approach?

1. In paragraph 64 of the employment tribunal decision, the tribunal took into account the employer’s follow-up questions in rejecting one substantial disadvantage caused by the PCP, even though the follow-up questions were a reasonable adjustment. It seems the tribunal should have left this reasonable adjustment out of account.
2. As part of deciding that the employer did not know and could not reasonably be expected to have known that the claimant had any difficulties in expressing the oral content of his presentation (ie that the PCP put him at a substantial disadvantage in this respect), the tribunal said at para 66.3 “the claimant stated in his oral evidence that he was able to express the content that he wished to express during his presentation”. This disregarded the fact that the claimant had taken twice the normal time for the presentation, evidently as a reasonable adjustment. Although the claimant had not raised the issue in his email (as the tribunal says in its other two points at 66.1 and 66.2), surely it was apparent during the presentation that the normal 10 minute presentation put him at a substantial disadvantage.
3. Finally, in considering whether the suggested adjustments would have removed the substantial disadvantage, in paragraphs 73 and 74 the tribunal took into account that the claimant’s interview lasted as long as required. This seems to have been longer than the normal 30 minutes, and so to have been a reasonable adjustment, as the interviewers had discussed in advance (para 33.2). It seems the PCP should have been the normal length of interview without the extension.

Reasonable adjustments: Employer’s knowledge (comments)

Constructive knowledge of what reasonable enquiries should have revealed

The tribunal “expressed the view” at paragraph 67 that the parties should have discussed potential adjustments for the claimant (whether orally or by email), in advance of or at the start of the claimant’s interview as a matter of good practice. This is not far from the tribunal saying the employer should reasonably have had this discussion, a matter which the tribunal did not consider. If the employer should reasonably have had the discussion, I suggest the tribunal should have held that knowledge which the employer would have gained from such a discussion should be attributed to the employer, as constructive knowledge under EqA Schedule 8 para 20 (below).

The tribunal rightly said (at para 15) that in Tarbuck v Sainsburys the Employment Appeal Tribunal (EAT) held that a failure to ‘consult’ about reasonable adjustments is not in itself a failure to make reasonable adjustments. The tribunal also rightly said that the EAT in Tarbuck had held it would be “good practice” to consult. However the tribunal did not add that the EAT said too: “If the employer fails to do that [ie consult], then he is placing himself seriously at risk of not taking appropriate steps because of his own ignorance. He cannot then pray that ignorance in aid if it is alleged that he ought to have taken certain steps and he has failed to do so”: see Reasonable adjustment rules: employment>Consultation – no duty to do it, but employers are well advised to.

The Tarbuck case did not specifically address the employer’s defence under EqA Schedule 8 para 20: see Knowledge of disability>Reasonable adjustment duty on employers. Under this defence, the employer is not obliged to make a reasonable adjustment if it does not know and could not reasonably be expected to know that the person has a disability and is likely to be placed at the substantial disadvantage. However this defence does not apply if the employer had “constructive” knowledge of the disability and disadvantage, ie if the employer could “reasonably be expected to know” of them as the statute puts it. As discussed at that link, the Employment Code of Practice says an employer must do all it can reasonably be expected to do to find out whether the employee has a disability and is likely to be placed at a substantial disadvantage. Therefore the employer should be treated as knowing what it would have found out from enquiries (including to the claimant) which it would be reasonable to expect the employer to make. The tribunal ought to have addressed this issue. Had the tribunal done so, it seems very possible from paragraph 67 of its decision that the tribunal would have found the employer should reasonably have had the discussion with the claimant, so that knowledge of what the employer would have learned should be imputed to it.

The result would most likely have been a different conclusion in paragraph 66 of the tribunal decision, where the tribunal found that the employer did not know and could not reasonably be expected to have known that the claimant had any difficulties in expressing the oral content of his presentation.

Other points on tribunal decision that employer did not know the stammer might limit content of presentation and answers

There is another point the tribunal appears not to have considered. I suggest it was evident from the claimant’s request to the employer to ask follow-up questions that he expected to have difficulty expressing the content of his answers in the interview. Would it not be reasonable for the employer to have read across from this that the claimant might have difficulty expressing the content of his presentation, and so might not say all he wanted?

Also the PCP (above) referred to the interview questions as well as the oral presentation. Therefore in addressing the employer’s knowledge of the substantial disadvantage caused by the PCP, the tribunal should have addressed the disadvantage caused by doing the interview orally, not just the presentation. For the interview questions, surely the claimant’s request that the employer ask follow-ups put the employer on notice that he expected to have difficulty expressing the content of the answers, and so might not say all her wanted

Note that on the facts of another case Y v Calderdale Council (2003), where the claimant was clearly struggling in the interview, the tribunal considered it was obvious to the employer that the claimant’s answers were being limited by his stammer.

Would those points have made a difference?

However, on the facts found by the tribunal, these points may not have made a difference to the final result: below Did all this make a difference to the result of the decision on reasonable adjustments?

Not assuming employer will be seen as having knowledge

One might argue the tribunal’s decision on knowledge is flawed, but it illustrates that one cannot assume a tribunal will find the employer has relevant knowledge. See Knowledge of disability>Better to tell employer etc rather than rely on constructive knowledge, and Should I tell the employer I stammer?

Reasonable adjustments: Whether adjustments would have removed the substantial disadvantage (comments)

At paragraphs 73 to 75 the tribunal asked itself whether the adjustments for which the claimant argued but which were not made would have removed the substantial disadvantage suffered by the claimant.

However why did the employment tribunal ask this question? It seems the question should have been whether it would have been reasonable for the employer to make the adjustments. The EAT has held that adjustments are not reasonable unless there is at least a “prospect”, or perhaps a “real prospect”, that the desired adjustment will have the desired effect: see Reasonable adjustment rules: employment>Substantial disadvantage. It does not matter whether the adjustment would have removed the substantial disadvantage.

Reasonable adjustments: Did those points make a difference to the result of the decision? (comments)

I suggest above that the tribunal should have looked at the provision, criterion (PCP) – agreed to be that the employer required candidates to undertake an oral presentation and answer oral questions – and its substantial disadvantages without regard to any reasonable adjustments the employer made, eg without time extensions and without the follow-up questions. I also suggest that if the employer had had the conversation with the claimant which it reasonably should have had, it would probably have known of the substantial disadvantages (and that it arguably knew of them anyway).

However would this have made a difference to the tribunal’s decision on reasonable adjustments? The employer made some reasonable adjustments – time extensions, follow-up questions, and possibly treating the presentation as a discussion – but was it reasonable for the employer to have to make the further reasonable adjustments for which the claimant argued?

It seems the tribunal might well have come to the view, given its findings of fact, that the adjustments actually made by the employer were sufficient to remove any substantial disadvantage, so that no further adjustments were legally required. Perhaps it is implicit from the tribunal’s consideration of whether the proposed adjustments would have removed the substantial disadvantage that it considered the adjustments actually made were sufficient to remove the disadvantage. One possible argument against this is that the tribunal should not have looked just in retrospect at whether the claimant was actually able to say everything he wanted at the interview, and that since there was a real prospect he would not be able to, further adjustments such as explicitly telling him he had more time should have been made. However I can’t think of any cases considering that kind of issue.

Reasonable adjustments: Eye contact and arranging for a scribe (comments)

One reasonable adjustment the claimant argued should have been made was “arranging for a scribe to record oral answers, removing the need for the panel to make written notes, and enabling natural eye contact to be unbroken when the claimant was providing his responses”.

The tribunal found as a fact that the two interviewers took it in turns to ask questions and write notes, enabling the other to maintain natural eye contact whilst the claimant was providing his responses (para 75). Therefore it said the adjustment was not required. At para 34 the tribunal had said it was highly unlikely that the interviewers discussed adjustments to their note-taking and eye contact practices for the claimant’s interview, but continued: “we accept their evidence that normally one of them would ask questions (and maintain natural eye contact) whilst the other took notes during each candidate’s interview”. Apart from the issue of what “normally” means, evidently both interviewers were marking all the questions asked out of 3. So one wonders is it really likely that one of the interviewers kept eye contact for each question? Also perhaps the tribunal should have paid greater attention to the experience of the claimant, who clearly felt there had not been enough eye contact; the interviewers were not even aware of the issue of eye contact at that time (para 34).

Also I’m not sure that a scribe to note down answers would be the best idea to resolve eye contact issues. Any notes by a “scribe” might not be sufficient to allow the interviewers to score answers after the event. On possible solutions, see Examples of reasonable adjustments: Recruitment>Oral interview: eye contact.

The issue of eye contact could tie in with the claimant’s argument that he should have been expressly told he had extra time for the interview, and perhaps the point (above) that there should have been a discussion with him about adjustments. If the claimant had known he had extra time, he might have paused speaking when both interviewers were taking notes. Also an interviewee might well be more willing to do this if it had been discussed in advance so the interviewers knew why he was pausing.

Reasonable adjustments: Follow-up questions (comments)

See comments at Examples of reasonable adjustments>Oral interview: Follow-up questions.