Interviews and reasonable adjustments
The duty to make reasonable adjustments arises where there is a provision, criterion or practice (PCP) which puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. The duty is to take such steps as it is reasonable to have to take to avoid the disadvantage. However, an employer is not subject to a duty to make reasonable adjustments if it does not know (actual knowledge), and could not reasonably be expected to know (constructive knowledge), that the employee has a disability and is likely to be placed at that disadvantage.
Mr G has a stammer. He applied for a promotion with his employer and was interviewed by video conferencing for one of two positions. He passed the interview, but came third by one point. Mr G issued a claim of disability discrimination in the Employment Tribunal, including that his employer had failed to comply with the duty to make reasonable adjustments. It was agreed that his stammer was a disability, and that the employer knew about it.
Failure to make reasonable adjustments?
Mr G argued that his stammer has two effects on how he communicates orally. The first is that he may need more time to complete giving his answers. The second is that he went into ‘restrictive mode’, by giving shorter answers to some questions than he otherwise might, to avoid stammering. His Tribunal claim related to this second effect.
The Employment Tribunal dismissed the claim. It noted that Mr G had performed to a high level during his employment. He had been interviewed on a previous occasion by video conference and had not at that time requested any adjustments to the selection process other than additional time. He had not raised any issues following the selection process. For the current application, he had been asked if he required an adjustment at interview and had said that he may require longer to answer questions. He did not ask for any further adjustments. The Tribunal found that Mr G did not explain to his interviewers the difficulties he was experiencing in expressing himself in the interview, he continued to provide answers and when prompted for further information, he responded. The Tribunal found that the employer did not have knowledge, either actual or constructive, of the disadvantage that Mr G was at due to his disability.
Mr G appealed to the Employment Appeal Tribunal (EAT). The EAT found that the employer had conducted interviews by video conferencing and scoring was based on the performance at interview, which amounted to PCPs. The Tribunal found that Mr G was put to a disadvantage, which was the impact of his answers of going into ‘restrictive mode’, compared with other candidates who did not have his disability. This was because he gave less full answers to some questions which affected his score. However, Mr G had not told the employer or explained the possibility that he may go into restrictive mode or ask for any adjustment for this. The Tribunal accepted that Mr G had gone into restrictive mode, but that this was not so severe that it should reasonably have alerted the interviewers to the fact that his disability might be affecting his answers in this particular way. The employer did not have constructive knowledge of the disadvantage. The EAT therefore dismissed the appeal.
Employers will not avoid the duty to make reasonable adjustments where they did not know, but should reasonably have known, about an individual’s disability and substantial disadvantage. Therefore, employers should take reasonable steps to find out the relevant information.
For an example of case in which a failure to make reasonable enquiries of a job applicant about the effect of his disabilities led to a finding that there had been a breach of the duty to make reasonable adjustments, see our separate post here.
29 January 2024
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