Noor v Foreign and Commonwealth Office

Where a disabled person establishes that a provision, criterion or practice caused substantial disadvantage, a claim of failure to make reasonable adjustments should be struck out only if it is plain and obvious that no reasonable step could have been taken.

The claimant must identify the broad nature of a potential adjustment, but the tribunal should consider other reasonably arguable adjustments, including adjustments raised at the hearing in appropriate cases. An adjustment need not remove the disadvantage completely. In a recruitment interview, its purpose may be to provide a level playing field, rather than to secure the appointment.

The claimant, a disabled applicant with severe dyslexia and dyspraxia, applied for a post advertised with particular competencies. During the interview he was questioned on a different competency, which had been omitted from the external advertisement because of an error.

The Employment Tribunal accepted that this placed him at a substantial disadvantage but struck out his disability discrimination claim, holding that re-interviewing him would not have secured the job. The claimant appealed, arguing that other reasonable adjustments should have been considered and that complete removal of the disadvantage was not required.

Appeal allowed. The claim was not to be struck out. It was to proceed to a case management discussion and a full hearing.

1. The Employment Tribunal was entitled to proceed on the basis that the claimant had been placed at a substantial disadvantage. A candidate who had not prepared for a particular competency would be disadvantaged, and the disadvantage was substantial for a person with severe dyslexia who needed to prepare for interview in a particular way.
2. The guidance in Project Management v Latif Institute [2007] IRLR 579 required consideration of the broad nature of the proposed adjustment. Once a potentially reasonable adjustment was identified, the employer could explain why it was not reasonable. In a suitable case, the tribunal itself could raise an adjustment, particularly where the claimant was unrepresented.
3. The Employment Tribunal erred by concentrating on re-interviewing. It should also have considered adjustments before or during the interview. It was arguable that the employer should have identified the omitted competency from the application form, alerted the claimant, and allowed him to complete the relevant part before interview. It was also arguable that re-interviewing before a final decision or allowing an adjustment in marking might have been appropriate.
4. The construction of section 18B(1)(a) of the Disability Discrimination Act 1995 was wrong. The provision requires regard to the extent to which a step would prevent the relevant disadvantage; it does not require complete effectiveness. HM Prison Services v Beart [2002] EAT/650/01 supported that approach.
5. The purpose of an adjustment is to prevent the provision, criterion or practice from placing the disabled person at substantial disadvantage. It is not necessary that the adjustment would result in appointment. The likely employment outcome may instead be relevant to remedy.

The Tribunal expressed no view on the ultimate merits. Questions of fact remained for the Employment Tribunal.

• Employment Appeal Tribunal: Allowed the appeal against the Employment Tribunal judgment dated 24 June 2010. The claim was to proceed to case management and a full hearing.
• Employment Tribunal: Struck out the disability discrimination claim as having no reasonable prospect of success.