Facts / background

Employers have a duty to make reasonable adjustments if they apply a provision, criterion or practice that puts someone with a disability at a substantial disadvantage.  However, the duty only applies if the employer knows (actual knowledge) or could reasonably be expected to know (referred to as constructive knowledge) that an employee has a disability and is likely to be placed at a disadvantage.

Mr Glasson had worked for The Insolvency Service since 2005. Mr Glasson has a stammer, which his employer knew about and which was classed as a disability under the Equality Act. In 2020 he applied for a promotion to a position for which there were two vacancies. Prior to the oral interview, in answer to questions on a form about adjustments for the interview, he indicated that, because of his stammer, he might need to be allowed more time to complete his answers. Oral interviews were conducted by video conference because of the pandemic. Mr Glasson was judged to have performed well overall, and passed the interview, but he scored one point behind the second most successful candidate. The jobs were given to that candidate and the highest scorer.

Mr Glasson subsequently brought a claim in the employment tribunal for failure to comply with the duty to make reasonable adjustments and discrimination arising from disability. He did not rely upon the fact that he needed more time for his answers, but on the fact that his stammer meant that he went into what he called "restrictive mode", giving shorter answers to some questions than he otherwise might, as a way of avoiding stammering. He did not raise this effect of his stammer in the interview form, nor did the employer otherwise have actual notice of it (as opposed to being aware of the fact that he might need more time to complete his answers).

The tribunal also looked at whether the employer had constructive knowledge that the interview process would put Mr Glasson at a disadvantage in the way that it did.  The tribunal found that the employer did not have constructive knowledge – it could not reasonably be expected to know about the disadvantage.  As such, the failure to comply with the duty to make reasonable adjustments claim was dismissed. The EAT subsequently upheld the tribunal's decision on appeal.  In deciding this they took into account Mr Glasson's general high performance at work and the fact he had been involved in a previous similar interview process where he had not raised concerns.  Mr Glasson's performance in this interview was also good.  His answers to questions were reasonably competent, even if they were not as detailed as expected.  This meant the extent of any disadvantage was not sufficient to put the interviewers on notice that the way he was answering questions was affected by his disability.

The tribunal and the EAT also decided that the employer's method of assessment (centred on performance in a live interview by video conference, as opposed to other modes of testing, such as written examination, or online testing) was objectively justified, so the discrimination arising from a disability claim failed.  They had regard to the fact that oral communication skills were needed for the job and that the recruitment took place in the context of the pandemic.

What does this mean for employers?

This case highlights the importance of both knowledge of a disability and its effects when deciding whether discrimination has occurred. Whilst this is another positive case for employers, it is important that employers always take an inquisitive approach to considering whether reasonable adjustments are required.  For example, if Mr Glasson had struggled to answer the questions in the interview the employer might have been expected to make further inquiries into whether his stammer affected his ability to perform in the interview, and if so, to take reasonable steps to avoid the disadvantage.

Glasson v The Insolvency Service