Interview candidate found not to have been discriminated against due to stammer

Employer did not have constructive knowledge of all the disadvantages the interview format had on the employee.

Employers are under an obligation to make reasonable adjustments for disabled employees and candidates in an effort to prevent processes they conduct from putting a disabled person at a significant disadvantage compared to those without the disability.

The duty to make adjustments only applies when the employer has actual knowledge or constructive knowledge (i.e. they did not know, but could reasonably have been expected to know) of both the disability and the disadvantage suffered.

An interesting recent case considered a situation where an employer had knowledge of a disability, but did not know about a particular disadvantage posed by this disability, and considered whether they fell short of the duty to make reasonable adjustments.

Case: Glasson -v- The Insolvency Service [2023]

Mr G had worked for The Insolvency Service (TIS) for several years and performed well. He had a stammer that had two disadvantages in relation to the interview process: 1) he took longer in oral question and answer situations to respond and 2) he went into what he called ‘restrictive mode’, which meant he shortened and simplified his oral answers.

In 2020 whilst the Covid-19 pandemic was ongoing, Mr G applied for promotions at TIS. TIS conducted interviews remotely by videoconference due to Covid restrictions. Mr G was unsuccessful with an initial application but did not raise any concerns that he was being disadvantaged by his stammer.

Mr G then applied for two promoted positions, declaring to TIS that he had a stammer and that he ‘may require longer to answer questions in the interview’. At the interview Mr G gave  answers which were reasonably competent but less full than the panel expected, with the interviewers prompting Mr G for more information at times. The interview was generally seen to go well, but in scoring he came just behind the candidate in second place and missed out on the roles.

Later, Mr G argued TIS had failed to make proper adjustments to mitigate for him entering ‘restrictive mode’ during the interview, which he argued had a negative impact on his score and ultimately meant he missed the promotion. Mr G later raised a claim against TIS for failing to make reasonable adjustments to the videocall format of the interview process that put him at a significant disadvantage that those without his disability were not subject to, contrary to s.20 Equality Act 2010.

Decision of the employment tribunal and EAT

At Tribunal, TIS accepted that it knew about the stammer and that gave them actual knowledge of a disability. The key question was whether TIS had actual or constructive knowledge of the disadvantage of Mr G going into ‘restrictive mode’.  TIS contended that Mr G had only asked for more time to provide answers as an adjustment, and TIS had done this. At no point prior to the interview or during it did he tell his interviewers or TIS that one effect of his stammer was him going into ‘restrictive mode’ and that this led to him giving less full answers. TIS argued that it did not know about this disadvantage and could not reasonably have been expected to know about it.

G argued that because TIS had actual knowledge of his stammer, when he gave less full answers and had to be prompted by the interviewers for more information, they ought to have known that this was part of his condition and enquired further. Had they done so, TIS could have adjusted the interview process to factor this in and Mr G would have scored higher.

The Tribunal ultimately agreed with TIS in their assessment and dismissed Mr G’s claims.

Mr G appealed to the EAT on multiple grounds, including that the Tribunal had been wrong to assess TIS’s constructive knowledge in this way. However the EAT dismissed the appeal on the basis that the Tribunal had assessed the full circumstances and was entitled to draw the conclusions it did.

In particular, the EAT considered the Tribunal’s reasoning on this matter to be consistent with the leading Court of Appeal case on constructive knowledge, A Ltd v Z [2018], whichmade clear that it was not incumbent upon an employer to ‘make every enquiry where there is little or no basis for doing so’ and that a reasonable employer in such circumstances required a balance between making enquiries, the likelihood of those enquiries yielding results and the dignity and privacy of the employee. 

Applying this to the matter at hand. The EAT felt it was reasonable for the Tribunal to carefully balance the need to make enquiries of Mr G with the risk of causing indignity by interrupting the interview to ask why Mr G was not giving fuller answers, and possibly linking this to his stammer. In such circumstances, the Tribunal was entitled to find that a reasonable employer was not bound to investigate the point further.

Comment

This case provides an interesting insight into how constructive knowledge on disability is applied. At first sight the line between knowledge of the stammer and knowledge of the secondary effect of the stammer (Mr G’s ‘restrictive mode’) seems clear, but it is not hard to see how in these circumstances the employer could have been found to have failed in its duty to make reasonable adjustments.

For example, presumably the Tribunal and EAT would have found that had Mr G mentioned his stammer but not identified the need for more time to answer questions, the need to do so would have been obvious on a constructive knowledge basis. If so, it seems odd that the tribunals did not apply the same logic to the point about less full answers because stammers are ultimately a condition that affects a person’s ability to communicate, and knowing that Mr G had a stammer, as TIS did, should arguably have put TIS on notice that any communication issues could be related.

This raises the question of whether TIS ‘had some basis’ for enquiring whether his less full answers were linked to his stammer as the decision in A Ltd v Z suggests. Likewise, the suggestion that TIS was not bound to enquire for fear of impinging on the dignity and privacy of Mr G offers little satisfactory cover for failing to do so – it is not difficult to imagine a scenario where the interviewers could have tactfully and delicately raised the point to ascertain if any further adjustments were required to mitigate any remaining detrimental effects of his stammer.

Employers may take more comfort from this decision than employees, but it should be noted that this decision is highly fact-specific and employers will need to assess for themselves whether there are any signs that ought to lead them to conclude a member of staff might be placed at a disadvantage by a disability in relation to an application process or other employment policies and practices.  If employers conclude that may be the case, they should consider how to tactfully approach the point and seek medical information to ensure they have the complete picture before taking key decisions.