The duty to make reasonable adjustments arises only if the employer knows, or could have reasonably been expected to have known, that the employee was disabled, and that the disability was liable to disadvantage the employee substantially. Knowledge of the extent to which a disability may disadvantage an employee requires knowledge of the effects the disability has.
Background
In this case the claimant, Mr Glasson, had a stammer. He had worked for the respondent, the Insolvency Service, since 2005. Throughout his employment the claimant had performed to a high level. In August 2020, during the restrictions imposed in consequence of the pandemic, the claimant applied for the role of Deputy Official Receiver ("DOR"). The claimant indicated he would need a reasonable adjustment during the interview, to allow him longer to answer questions because of his stammer. The interview took place via video conference. The claimant had applied for another role earlier that year, and during that process he had requested the same adjustment for extra time.
The claimant was judged to have passed the interview for DOR, but he missed out on the job by one mark. He brought a claim for failure to comply with the duty to make reasonable adjustments and discrimination arising from disability. It was accepted that the stammer did amount to a disability. His reasonable adjustment claim did not refer to the request for extra time, rather it said that his stammer caused him to go into what he called "restrictive mode", giving shorter (and therefore lower scoring) answers. He had not raised this effect of his stammer during this interview process or the one earlier in the year.
Tribunal judgment
The employment tribunal accepted that the "restrictive mode" was something arising from the claimant's stammer, and that it had an impact on his performance at interview. However, both his complaints were dismissed by the employment tribunal. The discrimination arising from disability claim failed because the employer was able to make out a successful justification defence. Although he had been less favourably treated, insofar as he was not offered the role because he had scored lower at interview due to disability, that discrimination was justified as a proportionate means of achieving the legitimate aim of having a fair and proportionate recruitment process. It was in connection with the failure to comply with the duty to make reasonable adjustments that the respondent's knowledge, or lack of knowledge, was key.
The respondent did know of the claimant's stammer and accepted it was a disability. However, the employment tribunal found that the respondent did not have actual knowledge, nor could the respondent have reasonably been expected to know, that the stammer would cause the claimant to give shorter answers. Accordingly, no duty to make reasonable adjustments arose. The claimant's general high performance at work, the fact he had been through a similar interview process during which he had raised no similar concerns, and his overall good performance at work contributed to the employment tribunal's conclusion on whether the employer should have had knowledge of the "restrictive mode" and the impact it had on the interview performance. On appeal to the Employment Appeal Tribunal this judgment was upheld.
Interestingly, the evidence in this case showed that some of the answers given by the claimant were not as detailed as the interviewers expected. However, the employment tribunal accepted that the impact on the claimant's performance was not so severe that this should have reasonably alerted the interviewers that his disability might be affecting his answers.
What can employers take from this judgment?
Employers will be reassured by this judgment that there are limits as to what they can be expected to know about the effects any particular employee's disability may have on that employee. Disability discrimination claims often focus on an employer's knowledge of the disability itself. However, when it comes to failure to make reasonable adjustments claims, that is only half the story. It will often be more difficult to establish that an employer has constructive knowledge of the effects of a disability, rather than the disability itself.
Given the weight of evidence that supported the claimant's abilities, it is likely the only thing that could have changed the outcome would have been if the claimant had specifically put the respondent on notice of his "restrictive mode" and the disadvantage it would cause him during an interview when he applied for the role. Had he done so, he may have got the job.
