In the case of Glasson v Insolvency Service the Employment Appeal Tribunal has found that the Employment Tribunal was entitled to find that an employer did not discriminate against the Claimant by conducting oral interviews by video conferencing in an internal recruitment exercise.
The Tribunal was deemed to have correctly rejected a failure to make reasonable adjustments claim because, despite the employer knowing the claimant had a stammer, and therefore needed more time to answer questions at interview, it did not know that, because of his stammer, he also gave shorter (and by their nature lower-scoring) answers as a way of avoiding his stammer. The employer had no constructive knowledge of this particular effect of the Claimant’s disability upon which his claim had been based. It had never been raised with them previously.
Constructive knowledge is an essential part of a reasonable adjustments claim relating to disability discrimination whereby an employer can only realistically be expected to make adjustments, if they are aware or should have been aware of an employee’s disability. In this case the Tribunal was entitled to consider the wider context which included the Claimant’s overall high performance, a previous interview process (conducted in the same vein) where he had not raised concerns, and in addition his overall positive performance at the interview in question.
The Tribunal found that although the Claimant was treated unfavourably because of something arising from his disability, the assessment method was a proportionate means of achieving a legitimate aim in that the employer wanted to implement a fair recruitment process for filling vacancies. This means effectively, that the discrimination was justifiable on a commercial basis.
This blog was written by Elizabeth McGlone, Partner at didlaw.
