Disability discrimination
Should an employer have made reasonable adjustments to its promotion selection process for an employee with a stammer?
Disability discrimination: should an employer have made reasonable adjustments to its promotion selection process for an employee with a stammer?
During any recruitment or promotion selection process, the employer will be under a legal duty to make reasonable adjustments to its processes where it knows, or could reasonably be expected to know, firstly that an applicant is disabled, and secondly that they are likely to be placed at a substantial disadvantage in the selection process due to their disability when compared to non-disabled applicants. The EAT has recently considered whether an employer should have made reasonable adjustments to its promotion selection process for an employee with a stammer.
G has worked for a government agency since 2005. He has risen through the civil service ranks and is a high-performing member of staff. G has a stammer and his employer is aware that this amounts to a disability. Two promotion opportunities arose in 2020, and G applied. Due to the pandemic, the selection interviews were conducted via video calls. Prior to his interview, G was asked to complete a form asking if he needed any reasonable adjustments to the selection process due to a disability. He indicated that he might need to be allowed more time to complete his interview answers due to his stammer. Although G performed well in the interview, and was deemed to have met the threshold for promotion, he was not selected for either of the two vacancies because he had scored third by one point. The two highest scoring candidates were promoted.
G brought a disability discrimination claim, arguing that the employer had failed to make reasonable adjustments to its promotion selection process to minimise the disadvantage caused by his disability. G argued that, due to his disability, he had gone into what he called ‘restrictive mode’ in his video interview. This ‘restrictive mode’ meant that, to avoid stammering, G had given much shorter answers to some of the questions than he otherwise might. The employment tribunal accepted that the employer knew G was disabled. The tribunal also accepted that G going into ‘restrictive mode’ was something arising from his stammer, and that this had impacted on G’s performance in the interview. However, ultimately the tribunal dismissed G’s disability discrimination claim. The tribunal noted that G had not raised this effect of his stammer in the pre-interview form, and held that the employer did not have actual or constructive knowledge that G was likely to suffer from this disadvantage.
The EAT dismissed G’s appeal, upheld the tribunal’s decision, and held that the tribunal had been entitled to dismiss G’s reasonable adjustments claim. Although the employer knew G had a stammer, it did not have actual or constructive knowledge of the particular disadvantage claimed (that G might go into ‘restrictive mode’ during the interview to avoid stammering). The tribunal had been entitled to consider G’s generally high performance at work, a previous similar interview process during which he had raised no similar concerns, and that overall G was scored well on his interview performance.
