This week we ask the question – does not providing extra time in an interview for an employee with a stammer amount to disability discrimination? For those that missed our last update where we looked at a significant case on whether anti-Zionist beliefs amounted to a protected belief, you can catch up here. This week’s claim is the case of Glasson v The Insolvency Service.
The Claimant, Mr S Glasson, worked for several years as an Insolvency Examiner with The Insolvency Service (the Respondent). He also suffered with a stammer which did not impact his performance, as he had been successful in a number of previous promotions and his capability was never questioned. The parties agreed that this amounted to a disability as the condition had a long term adverse impact on the Claimant’s ability to communicate.
The Claimant applied for a promotion to Deputy Official Receiver within the Respondent. The Claimant did not raise any concerns about the process beforehand or suggest any methods which could assist his stammer during the interview. The process came down to two candidates, the Claimant and another applicant. Unfortunately, the Claimant was unsuccessful as the score for his interview was a single point lower than the other candidate. A complaint was then raised on the fact that he was not given additional time in the interview and was not allowed breaks in between questions to consider his answers and determine whether further information could be provided. The Claimant stated that he was responding in ‘restricted mode’, as a way of mitigating his stammer during the interview.
Mr Glasson brought a complaint of failure to make reasonable adjustments and discrimination arising out of a disability to the Employment Tribunal. The Provision, Criterion or Practice was stated to be; 1. Holding interviews by video conference, 2. Emphasising performance in interview over technical skills when scoring candidates and having warm up questions for determining whether a reasonable adjustment should have been made.
The Tribunal found that the answers given in interview were noted by the Respondent as not being fully explained and may have been expanded upon had the Claimant been given additional time. However, they also determined that the Claimant did not explain the difficulties he was facing at the time, only raising the complaint after he became aware he did not get the job. Ultimately, the claim for discrimination failed as the interviewers were not aware of the Claimants condition at the time of the interview, or during the selection process and could not therefore treat the Claimant unfavourably as a result.
It was also found that the Respondent had a legitimate aim of filling business critical roles during a lockdown which impacted their ability to conduct face to face interviews. Although discrimination arising from a disability was found, the Tribunal considered the Respondent’s action of conducting interviews via video conferencing to be a proportionate means of achieving a legitimate aim. The claim was rejected.
The Claimant appealed the decision, stating that concerns were raised and that he made a statement regarding his stammer during the interview process which made the initial decision perverse. The EAT found that while the employer may have been aware of his condition, they did not have knowledge of the disadvantage the Claimant faced or the disadvantage this presented to the Claimant. The proportionate means of achieving a legitimate aim was also upheld.
The appeal was dismissed.
Takeaway Points
While it must have been upsetting finding out that you were a single interview point away from a successful promotion, this case presents a useful insight into how disability discrimination claims function.
In regard to discrimination arising from a disability, it is not enough to show that unfavourable treatment took place. Unfavourable treatment may arise in the perfectly legitimate course of business which may prove a disadvantage to those with a disability. However, it is the purpose of the actions that make the difference, as they must both work towards a legitimate end and be a proportionate means of achieving that end. It would be unfavourable treatment to deny a person who did not have use of their limbs a labour-intensive position but would not amount to discrimination as this would be a legitimate end to ensure both business efficacy and health and safety.
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