Did an interview by video call result in an applicant with a stammer being discriminated against as a result of his disability?
No, ruled the Employment Appeal Tribunal (EAT) in Glasson v The Insolvency Service.
Facts
Mr Glasson (G) had worked for the Insolvency Service since 2005. In August 2020, he applied for a promotion to the role of Deputy Official Receiver, which had two vacancies. As became the new normal during the Covid-19 pandemic, the Insolvency Service carried out interviews by video call.
The candidates were asked to complete a form prior to the interviews. G stated on his form, “I have a stammer and may require longer to answer questions in interview.”
The interview process was carried out and G scored one point behind the second highest scoring candidate. He was placed on a reserve list for the role.
G raised a claim of failure to comply with the duty to make reasonable adjustments and discrimination arising from disability. His claim was not based upon the fact that he needed more time for his answers. Instead, G explained that because of his stammer he went into what he called “restrictive mode”; this meant he gave shorter answers to some questions than he might have done to avoid stammering.
It was also part of G’s case that the tendency to enter into ‘restrictive mode’ was made worse by the interview being conducted over video call than in person. G did not mention this effect of his stammer during the interview and the Insolvency Service were not aware that his stammer may have this particular effect.
In dismissing the claim of failure to make reasonable adjustments, the ET ruled that the Insolvency Service did not have actual or ‘constructive’ knowledge of the disadvantage that G relied upon (entering into ‘restrictive mode’ during a video interview).
Regarding the claim of discrimination arising from disability, the ET found a causal link between G not getting the job and his stammer; G did not get the role because entering “restrictive mode” had led to lower scores being awarded during the video interview.
However, the ET held that using video calls to interview candidates was a proportionate means of achieving the legitimate aim of having a fair and proportionate recruitment process for filling vacancies. Therefore, the claim failed.
The claimant appealed on seven grounds to the EAT.
Law
Disability is a protected characteristic under the Equality Act 2010. The Act states that a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities
If a provision, criterion or practice (PCP) implemented by an employer puts a disabled employee at a substantial disadvantage in comparison with an employee who is not disabled, an employer must take reasonable steps to avoid the disadvantage.
In considering whether an employer has failed to make reasonable adjustments, the ET needs to establish whether the employer knows or could reasonably be expected to know (actual or ‘constructive’ knowledge) of the disability and of the substantial disadvantage experienced by the employee as a result of a PCP.
An employer will also discriminate where it treats an employee unfavourably because of something arising in consequence of the employee’s disability and cannot show that the treatment is a proportionate means of achieving a legitimate aim.
Decision
The EAT dismissed the appeal.
It found that the ET had not erred in concluding that the Insolvency Service did not have actual or ‘constructive’ knowledge of the disadvantage G relied upon.
The ET was correct to consider the factual background and context that G had generally performed highly, no concerns were raised during a previous similar interview process and that overall he had performed well at the interview in question.
The EAT held that it was right of the ET to consider whether there was anything in the background that suggested the Insolvency Service had been made previously aware of G entering “restrictive mode” or if the factual background and context suggested that the interviewers should have suspected that G was entering “restrictive mode” during the interview.
The EAT noted that although the ET could have “spelled it out”, it was clear from their judgment that the ET did not think G’s answers were so drastically affected by his “restrictive mode” to make the interviewers think that this was being caused by a second effect of his disability, that was different from the one he had stated on the form.
The EAT concluded that the ET had not erred in dismissing the discrimination arising out of disability on the basis that the Insolvency Service had established the justification defence.
The EAT held that the ET was correct to consider the context of the Covid-19 pandemic, office closure and that it was not plausible to have face-to-face interviews. It was also proper for the ET to take into account its finding that the role was business critical and required to be filled.
Comment
Emma McFarlane, Trainee Solicitor in our Employment team comments,
“Employers must always be conscious of the duty to make reasonable adjustments for employees with a disability.
“However, this case is a reminder that the duty only arises when the employer knows or could reasonably be expected to know (what is referred to as “constructive knowledge”) of the disability and the substantial disadvantage the applicant or employee faces as a consequence. There are limits on what an employer can reasonably be expected to do to find out about any disability or substantial disadvantage arising from that disability.
“Further, even if an employer is found to have discriminated against an employee because of something arising from their disability, this case serves as a reminder that a justification for the treatment can be made out.”
Published 10 May 2024.
