Recruitment and Discrimination

Disability is one of the nine protected characteristics under the Equality Act 2010. Under the Act, a person has a disability if they have a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Where a physical feature, provision, criterion or practice (PCP) or lack of an auxiliary aid places a disabled job applicant or employee at a substantial disadvantage compared to a non-disabled job applicant or employee as a result of their disability, an employer must take reasonable steps to avoid that disadvantage. An employer is not subject to this duty to make reasonable adjustments if they do not know, and could not reasonably be expected to know, that the job applicant or employee has a disability and that they are likely to be placed at a substantial disadvantage due to their disability.

In addition, if an employer knows, or could reasonably be expected to know, that a job applicant or employee has a disability, they discriminate against them if they treat them unfavourably because of something arising in consequence of their disability. The employer will have a defence if they can show that the treatment is a proportionate means of achieving a legitimate aim.

In the case of Glasson v The Insolvency Service, Mr Glasson had commenced employment with the Insolvency Service in 2005. In August 2020, Mr Glasson applied for a promotion to a position with two vacancies. Due to the COVID-19 pandemic, interviews were conducted by video conferencing. On the interview form, Mr Glasson had stated that he may need additional time to answer questions as he had a stammer. Mr Glasson scored one point less in the recruitment process overall than the second most successful candidate and so was not offered one of the two positions.

Mr Glasson brought employment tribunal claims against the Insolvency Service for failure to make reasonable adjustments and discrimination arising from disability. He submitted that his stammer had caused him to go into ‘restrictive mode’ in the interview and give shorter, lower-scoring answers to questions to avoid stammering.

Although the tribunal accepted this submission and that going into restrictive mode had affected his performance, it rejected Mr Glasson’s claims.

In consideration of the reasonable adjustments claim, the tribunal found that the Insolvency Service had applied the following three PCPs, which had put Mr Glasson at a substantial disadvantage:

• conducting interviews by video conferencing;
• placing more weight on interview performance over written answers and technical skills when scoring candidates; and
• including warm-up questions in the interviews.

However, the claim was dismissed on the basis that the Insolvency Service did not have actual or constructive knowledge of the relevant substantial disadvantage (giving shorter answers in an oral interview). This had not been included by Mr Glasson on his interview form, or raised at any other time during the interview or decision-making process.

In relation to the discrimination arising from disability claim, the tribunal found that Mr Glasson was treated unfavourably because of something arising from his disability when he was not offered a position; he had scored lower than the two most successful candidates as a result of going into restrictive mode during the oral interview.

Nevertheless, Mr Glasson’s treatment during the selection process was not unlawful discrimination. The weight placed by the Insolvency Service on performance at oral interview was justified. It was a proportionate means of achieving its legitimate aim of having a fair and proportionate recruitment process for filling vacancies, taking into account that the interviews took place during the pandemic and that oral communication skills were required for the particular role. The tribunal also found that the recruitment process had a low discriminatory impact on Mr Glasson because he was able to engage with the majority of it and scored relatively highly in it overall. Mr Glasson appealed to the Employment Appeal Tribunal (EAT).

The EAT dismissed the appeal. In upholding the tribunal’s findings on the reasonable adjustments claim, it confirmed that the tribunal had been entitled, when considering whether the Insolvency Service had actual or constructive knowledge of the substantial disadvantage, to consider Mr Glasson’s generally high performance at work and in the interview, as well as a previous similar interview process during which Mr Glasson had raised no concerns. The EAT also upheld the tribunal’s findings and approach to the discrimination arising from disability claim.

This case is a reminder of the duty to make reasonable adjustments but also highlights that the duty will only arise where an employer knows, or could reasonably be expected to know, of the disability and the substantial disadvantage at which the job applicant or employee is placed as a result.

If the claim had been in relation to Mr Glasson not being given extra time to answer the interview questions, the position is likely to have been different as Mr Glasson had made his employer aware of this disadvantage in his interview form. Furthermore, if Mr Glasson had clearly found it difficult to answer the interview questions, his employer may have been required to ask whether his disability was impacting on his performance, and then take reasonable steps to avoid the disadvantage.

The case also demonstrates how an employer may have a defence to a discrimination arising from disability claim if they can justify any discriminatory treatment as a proportionate means of achieving a legitimate aim.

If you would like assistance with ensuring that your recruitment processes are non-discriminatory or you would like advice regarding a disabled job applicant or employee, please get in touch at [email protected].