S Glasson v The Insolvency Service

An employer’s duty to make reasonable adjustments depends on actual or constructive knowledge of the particular substantial disadvantage caused by the relevant PCP. Constructive knowledge is a fact-sensitive question. An employer need not make further enquiries where the surrounding circumstances would not reasonably alert it to an uncommunicated effect of disability.

For discrimination arising from disability under Equality Act 2010, justification must address the assessment method that produced the unfavourable outcome. A live oral interview may be a proportionate means of selecting candidates where oral communication is a required skill, no less discriminatory effective alternative is identified, and the discriminatory impact is limited.

The claimant, who had worked for the respondent since 2005, has a stammer. He applied for one of two Deputy Official Receiver roles in 2020. He told the respondent that he might need longer to answer interview questions, but did not explain that his stammer could cause him to limit answers in a coping strategy he called restrictive mode.

He passed a video interview but was one point behind the second successful candidate. The Employment Tribunal dismissed claims for failure to make reasonable adjustments and discrimination arising from disability. It found that restrictive mode affected his interview performance, but that the respondent lacked actual or constructive knowledge of that particular disadvantage and that the assessment process was justified.

The claimant appealed on grounds concerning the identification of PCPs and disadvantage, constructive knowledge, and the proper subject of the justification defence under section 15.

1. Appeal dismissed. The tribunal was entitled to reject all claims.

2. The tribunal had identified the three pleaded PCPs: video interviews, emphasis on oral interview performance, and warm-up questions. There was no dispute that they were applied or that they were PCPs in law. It also identified a single disadvantage relied on for each PCP: the claimant’s limiting of some answers through restrictive mode, which reduced his score. It was not required to repeat these findings separately for each interrelated PCP.

3. The duty to make adjustments was not engaged because the respondent did not know, and could not reasonably have been expected to know, of that particular disadvantage for the purposes of Schedule 8 paragraph 20 of the Equality Act 2010. The claimant had disclosed a distinct need for more time, but had not disclosed restrictive mode. His generally strong work performance, an earlier video interview without similar concern, and his reasonably competent performance in the disputed interview were relevant context. They supported the tribunal’s permissible finding that the limited answers were not sufficiently striking to put interviewers on enquiry.

4. The tribunal correctly treated the section 15 unfavourable treatment as the failure to appoint the claimant, while considering whether the assessment method that produced the scores was justified. It was entitled to find that live oral assessment tested a skill required for the role. Video delivery was also relevant because face-to-face interviews were unavailable during the pandemic. No less discriminatory method capable of testing oral communication and filling business-critical roles had been shown. The tribunal’s proportionality conclusion was therefore open to it.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 5.
• Employment Tribunal: The claimant’s reasonable-adjustments and discrimination-arising-from-disability claims were dismissed.