Key takeaways

It is common practice to ask interview candidates to contact the employer if they require reasonable adjustments, or to ask a yes/no question, and employers should continue to do so. If the candidate doesn’t request an adjustment, this will be helpful to an employer defending a subsequent reasonable adjustments claim. However, an employer cannot rely solely on a candidate's self-declaration. If events on the ground reasonably suggest something is amiss which might stem from a disability, or if an employer is aware of a disability which might reasonably be expected to affect the candidate's ability to participate in the recruitment process, an employer should make reasonable enquiries of the candidate and consider whether advice from occupational health is required. In this case, the candidate was a long-standing employee with good performance, and who actually performed relatively well in the interview, leading the tribunal to accept that there were no red flags about the potential effect of his stammer. 

In more detail

If an employer applies a provision, criterion or practice which puts a disabled person at a substantial disadvantage in comparison to someone who is not disabled, there is a duty to take reasonable adjustments to avoid the disadvantage. However, the duty does not apply where the employer does not know and could not reasonably be expected to know both that the disabled person has a disability and that they are likely to be placed at the disadvantage in question.
In this case, the employee (G) has a stammer. He started work for the Insolvency Service (IS) in 2005 and performed well throughout his employment. In July 2020, he interviewed for a role via video conference. He didn't request adjustments and didn't raise any concerns afterwards.

The following month, G applied for a different role. This time he said that he may require longer to answer questions in the interview, due to his stammer. He scored well, being deemed to have passed the interview. However, the two other candidates who were also interviewed scored higher than him and so he did not get the job.

It is inferred from the EAT's judgment that G was given sufficient time in the interview, as requested. However, he subsequently claimed that the IS:

• Should not have required him to interview by video conference.
• Should have given increased weight to written answers.
• Should not have asked "warm-up" questions in the interview. 

In short, G said that all of these things caused him to go into what he called "restrictive mode", i.e., a situation where he limits what he is saying, because of his stammer.

The case revolved around whether the IS knew, or ought to have known, that the interview format would cause G to go into restrictive mode. Both the employment tribunal and EAT said no.

G had never mentioned the restrictive mode issue and the IS interviewers had been entitled to not suspect that this might be going on in the interview. In reaching this conclusion, the tribunal had permissibly taken into account G's general high performance at work over the previous 15 years, the previous similar interview process, and his overall good performance at this particular interview. G had in fact only been one point behind the second-highest candidate and, overall, the evidence indicated that although going into restrictive mode had had some impact on his performance, its effect in the interview was not dramatically obvious. In short, there were no red flags that should have prompted the IS to suspect that G was under-performing at interview because of his stammer, or to ask him whether this was the case. On that basis, the IS had not breached the duty to make reasonable adjustments.

G had also brought a claim for discrimination arising from disability, which failed on the basis that the employer's decision to conduct interviews by video conference was justified, given that this took place during the pandemic.

G did not claim for indirect disability discrimination, where there is no defence for employers based on lack of knowledge.

Glasson v. Insolvency Service, EAT