Background
The claimant applied for a team manager role with Coventry City Council. At the time, he was diagnosed with both Asperger's Syndrome and dyslexia. He had informed the Council of his disabilities and, as a result, a number of adjustments to the interview process were agreed. He was scheduled to be the last interview of the day, the interview questions were supplied to him around 25 minutes prior to the interview and it was agreed that the interviewers would prompt him or rephrase questions if required. Despite this, he was unsuccessful.
The claimant brought claims for a failure to make reasonable adjustments - he argued that further adjustments should have been made, including asking only closed rather than open questions - and a claim of discrimination arising from disability. One of the "somethings" arising from his disability was that the claimant suffered stress in new situations, such as meeting new people in job interviews, and the stress adversely impacted his performance. The employment tribunal dismissed his claims. It found the Council had made the necessary adjustments and that the claimant had not been stressed during the interview. In coming to the latter conclusion, the employment tribunal had relied heavily on the evidence of one of the interviewers that the claimant had not appeared stressed.
The Employment Appeal Tribunal judgment
The Employment Appeal Tribunal ("EAT") upheld the employment tribunal's dismissal of the reasonable adjustments claim. The questions that had been asked satisfied the National Autistic Society guidance on closed questions. Limiting the questions only to those that could be answered "yes" or "no" would not have been reasonable in these circumstances, where more information was required for a meaningful assessment.
However, the EAT found that the employment tribunal had relied too heavily on the evidence of the interviewer regarding how a stressed person would typically present at interview. It had failed to consider whether the claimant's neurodiversity might result in stress being displayed in a way different from that of a neurotypical person. The EAT remitted this part of the claim to a new tribunal. That tribunal will need to consider whether stress materially contributed to the claimant's failure to be appointed to the role and, if so, whether the decision not to appoint the claimant was nonetheless justified.
Key takeaways for employers
The key message from this case is the danger of making assumptions. An untrained party's impression is not a valid substitute for proper evaluation of how a disability affects an individual. Employers should:
Ensure recruitment panels are trained on neurodiversity.
Recognise that disability-related effects may not be visible.
Ensure that the focus is on evidence rather than assumptions.
Document adjustments and decision-making carefully.
Employers can also take some comfort from the unsuccessful appeal of the dismissal of the failure to make reasonable adjustments claim. If an adjustment would render an interview process meaningless, it will not be considered reasonable to make it.
