The Employment Appeal Tribunal (EAT) has held in Glasson v Insolvency Service that an employment tribunal was entitled to find that the respondent did not discriminate against the claimant by conducting oral interviews by video conferencing in an internal recruitment exercise.
The claimant, who has a stammer, started employment with the Insolvency Service (IS) in 2005. In August 2020 he applied for a promotion to a position for which there were two vacancies. Due to the Covid-19 pandemic, IS conducted oral interviews for the position by video conferencing.The claimant indicated on a form about potential adjustments required for the interview that he might need more time to answer questions because of his stammer. Although he performed well overall in the process he was not offered the position and brought claims for a failure to comply with the duty to make reasonable adjustments and discrimination arising from disability.
The EAT found that the tribunal had correctly rejected the claim for failure to make reasonable adjustments because, although the employer knew that the claimant had a stammer and therefore needed extra time to answer questions at the interview, it was unaware that he also gave shorter (and so lower-scoring) answers as a way of avoiding his stammer. In determining that the respondent had no actual or constructive knowledge of this particular effect of the claimant's disability, the tribunal was entitled to consider the wider factual context, including the claimant's generally high performance at work, a previous similar interview process in which he had not raised concerns, and his overall performance at the interview. The tribunal had also been entitled to find that, although the claimant was treated unfavourably because of something arising from his disability, the method of assessment was a proportionate means of achieving the employer's aim of having a fair and proportionate recruitment process for filling any vacancies.
Take note: The decision in Glasson reiterates that the duty to make reasonable adjustments will only arise where the employer knows, or ought reasonably to know, of the disabled person's disability and of the substantial disadvantage at which they are placed. It was also the case that the employer could justify its approach and so defend the discrimination arising from disability claim. In coming to this conclusion the EAT took account of the fact that the recruitment process took place during the pandemic when face-to-face interviews were not possible and that the process tested oral communication skills that were needed for the role.
