The Employment Tribunal ruled in the employer’s favour after finding that the employer had no knowledge of a particular effect of the employee’s disability and, whilst the employee was treated unfavourably because of his disability, the method of conducting the interview was a fair and proportionate way to achieve the employer’s legitimate aim of a fair recruitment process.
Mr S Glasson v The Insolvency Service
Background
The Claimant, Mr Glasson, was a successful employee of The Insolvency Service (TIS) and was known for his “high level” performance throughout the duration of his employment.
TIS was aware that Mr Glasson had a stammer and they accepted that this amounted to a disability for the purposes of the Equality Act 2010.
Mr Glasson applied, and was interviewed, for the role of Deputy Official Receiver as part of an internal recruitment process. The interview took place on 7 July 2020 via a video conference, because of the pandemic. Within his application for the role, Mr Glasson stated:
“I have a stammer and may require longer to answer questions in the interview”.
This was the only reasonable adjustment requested.
During the interview, Mr Glasson entered “restrictive mode” because of his stammer; meaning that he limited his responses and that he “struggled to give full answers to the questions being asked”. Despite this, Mr Glasson did not alert TIS and continued to participate in the interview.
It was not known to TIS that the restrictive mode was a potential effect of the disability, but Mr Glasson assumed that TIS was aware of this. The result of this was that Mr Glasson gave shorter and therefore lower scoring answers to the questions asked.
Mr Glasson scored third overall out of the applicants and was deemed to have passed the interview. The role of Deputy Official Receiver was awarded to the applicants who scored first and second overall. Mr Glasson brought a claim against TIS for discrimination arising from disability and a failure to make reasonable adjustments.
The Tribunal’s findings
Judge Mark Butler whilst accepting that Mr Glasson’s disability impacted his performance at the interview, proceeded to dismiss the claims:
Failure to make reasonable adjustments
The Judge held that TIS had no actual or constructive knowledge of the disadvantage experienced by Mr Glasson and therefore the duty was not triggered.
Discrimination arising from disability
The Judge held that while Mr Glasson was treated unfavourably because of something arising from his disability, any discriminatory treatment was justified as a proportionate means of achieving the legitimate aim of having a “fair and proportionate recruitment process”.
Learning points for employers
This decision should be reassuring for employers as it confirms that they are not expected to make adjustments for elements of disability that they are not aware of.
However, employers should not be complacent as the Tribunal will always consider an employer’s actual knowledge and their so-called constructive knowledge – what they ought to have known and so employers will not benefit from not asking questions or turning a blind eye.
How can we help?
Chloe Hickling is a Trainee Solicitor at Nelsons.
If you have any questions concerning the subjects discussed in this article, please contact Chloe or a member of our expert Employment Law team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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