The law says that employers cannot discriminate against disabled workers unless they can justify it. In Glasson v The Insolvency Service, the Employment Appeal Tribunal (EAT) held that Mr Glasson (who has a stammer) was not discriminated against when it held oral interviews by video link as part of a recruitment exercise as his employer could not have been expected to know that he might go into “restrictive mode”.
Basic facts
In 2020, Mr Glasson applied for an internal promotion for a position for which there were two vacancies. Before the interview (which was held via video link) he was given a form to complete about any adjustments that he might need as his employer was aware he had a stammer.
He indicated that he might need more time to complete his answers but did not mention that he might give shorter answers as a way of avoiding stammering (a phenomenon he referred to as “restrictive mode”) on either the pre-interview form or at any time during the interview. Although he was judged to have performed well overall, he was not offered either of the posts.
Mr Glasson lodged claims of failure to comply with the duty of reasonable adjustment under section 20 of the Equality Act 2010 and discrimination arising from disability under section 15 on the basis that he had gone into “restrictive mode” during the interview.
Relevant law
Section 20(3) states that employers must make reasonable adjustments for disabled workers if a provision, criterion, or practice (PCP) puts them at a substantial disadvantage compared with someone who is not disabled unless the employer did not know or could not reasonably have been expected to know of the disadvantage.
Section 15 states that it is discrimination for an employer to treat a disabled person unfavourably because of “something arising in consequence of their disability” and the employer cannot show that the treatment is a “proportionate means of achieving a legitimate aim”.
Tribunal decision
With regard to the section 20 claim, the tribunal found that Mr Glasson’s employer had applied three PCPs - holding interviews by video conferencing, emphasising oral performance over written answers and technical skills, and having warm-up questions as part of the interview – all of which had put him at a substantial disadvantage. However, as his employer did not have actual or constructive knowledge of the disadvantage, it rejected his complaint.
As for the section 15 claim, the tribunal agreed with Mr Glasson that the effect of "restrictive mode" was “something arising” from his stammer, which had an impact on his performance at the interview. He had, therefore, been subjected to unfavourable treatment for something arising out of his disability. However, it concluded that the treatment was objectively justified as the process used by the organisation for filling vacancies (conducting live interviews by videoconferencing during a pandemic) was fair and proportionate.
EAT decision
With regard to the section 20 claim, the EAT held that the tribunal was right to take into account the factual background and context of Mr Glasson’s general high performance at work, a previous similar interview process about which he had not raised any concerns and his overall good performance at this particular interview. As he had not previously made the interviewers aware that he might go into "restrictive mode", it was right to conclude that they did not have either actual knowledge that he might react in this way or constructive knowledge in that they should have suspected that this might be happening.
With regard to the section 15 claim, the EAT held that the tribunal was right to conclude that the method of assessment used by his employer – a live oral interview - was justified in the context of the pandemic given that oral communication was one of the skills needed for the job.
It therefore dismissed the appeal.