A recent case in the Employment Appeal Tribunal has considered the importance of knowledge of a disability in discrimination claims.
In Glasson v Insolvency Service [2024], the Employment Appeal Tribunal upheld the Tribunal’s decision that the respondent employer did not fail to comply with its duty to make reasonable adjustments, nor did it breach section 15 of the Equality Act 2010 relating to discrimination arising from disability. This judgment provides a helpful reminder to employers concerning the importance of knowledge of a disability when deciding whether discrimination has occurred.
Background
Mr Gasson was a long serving and high performing employee of the Insolvency Service. The claimant’s disability was that he suffered a stammer. As a result, he would sometimes go in to ‘restrictive mode’ giving shorter answers when asked questions to avoid stammering. The claimant applied for a more senior position with his employer and a verbal interview was conducted by video conference. He passed the interview but, under the rankings of the interviewees, was placed on a reserve list. He issued claims of failure to make reasonable adjustments and discrimination arising from disability.
When considering the failure to make reasonable adjustments claim, the Employment Appeal Tribunal upheld the Tribunal’s finding that, on the facts, the employer did not have actual or constructive knowledge of the disadvantage caused to the claimant by the interview process. The claimant worked to a high standard in his existing role, had been interviewed using videoconferencing facilities before with no issues, had raised no concerns in advance of the interview and had provided answers in interview that were reasonably competent. In particular, prior to interview, the claimant had stated that he may need longer to answer questions due to his disability but did not declare that his stammer may cause him to go into restrictive mode.
In relation to the section 15 (discrimination arising from disability) claim, the Employment Appeal Tribunal agreed with the Tribunal’s findings that although there had been disability arising from discrimination (the claimant having been disadvantaged during the interview due to his disability resulting in lower scores and not securing the promotion), the respondent’s justification defence was proven. The use of a live oral interview was justified because oral communication was one of the skills need for the job and the videoconferencing was justified due to the pandemic.
Even though the employer was aware of Mr Glasson’s disability, it didn’t have actual or constructive knowledge that the interview process would put him at a disadvantage in the way it did. It was of assistance in the defence of the claim that the claimant had not drawn attention to the disadvantage other than asking for extra time to answer questions. The situation may have been different if Mr Glasson had obviously been unable to answer questions adequately on the day or had mentioned going into “restrictive mode” when answering. In that case, the interviewing panel might have been expected to make further inquiries into whether the claimant’s disability affected his ability to perform in the interview, and if so, take reasonable adjustments to avoid the disadvantage.
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