The critical role of employer awareness in claims of disability discrimination

Employers have a statutory duty to make reasonable adjustments for employees with disabilities. What adjustments are appropriate for an employee will depend on the specific circumstances and are ultimately unique to the protected characteristic of disability. Where the duty to make a reasonable adjustment arises, the employer is to treat the disabled individual more favourably than others, so as to remove or reduce that individual’s disadvantage.

When determining what is reasonable, employers can take factors such as affordability, practicality and whether such an adjustment could harm the health or safety of others into account, together with the consideration of whether such adjustment will remove or reduce the disadvantage.

The recent EAT case of Glasson v The Insolvency Service considers the importance of an employer’s knowledge of disability and its effect to determine whether discrimination has occurred.

Background
The claimant had worked for the respondent since 2005 and had a stammer, which the respondent was aware of. Following his application for a promotion in 2020 (where there were 2 vacancies), in answer to a question about adjustments for the interview, the claimant indicated that due to his stammer, he may need more time to complete his answers. The claimant did not assert that any other adjustment was necessary. The claimant performed well in the interview but scored one point behind the second most successful candidate, meaning he was not successful in getting the promotion.
The claimant brought the following claims in the employment tribunal:

1. Failure to comply with the duty of reasonable adjustments; and
2. Discrimination arising from disability.

The claimant alleged that due to his stammer, he went into “restrictive mode” whereby he would give shorter answers to some questions to avoid stammering. This effect of his stammer had not previously been raised with the respondent, nor did the respondent have actual knowledge of it.

The employment tribunal found that the effect of shortening his answers was something arising from the claimant’s stammer and therefore had an impact on his performance at the interview. The claim for reasonable adjustments failed on the basis that the respondent did not have actual or constructive knowledge of this disadvantage relied on by the claimant.

The claimant appealed. The 7 grounds of appeal were:

1. Grounds 1-5 related to the complaints of failure to comply with the duty of reasonable adjustments. Specifically, that the claimant had disclosed that he had a stammer and as such it was perverse to conclude that the respondent did not have actual or constructive knowledge that the PCPs put the claimant to a substantial disadvantage, on the basis it should have been obvious, or the respondent should have otherwise known it.
2. Grounds 6 and 7 related to the complaint of discrimination arising from disability, specifically that the Tribunal erred by considering whether the use of video conferencing was justified and that it had took into account irrelevant factors such as the number of people affected by the decision and the impact of the claimant of holding the interviews in that way.

Finding
The EAT upheld the Tribunal’s decision as follows:

1. the reasonable adjustment complaint failed on the basis that the respondent did not have actual or constructive knowledge of the disadvantage relied upon by the claimant;
2. the Tribunal did not fail to identify the PCPs or substantial disadvantage relied upon;
3. the Tribunal did not err in failing to consider whether the fact that the claimant gave less detailed answers to some questions than expected should have reasonably put the interviewers on enquiry as to whether this might be an effect of his disability;
4. the Tribunal had proper regard to the factual background and context of the claimant’s general high performance at work, a previous similar interview process in relation to which he raised no similar concerns, his overall good performance at the particular interview in question in which he was only 1 point behind the highest candidate; and
5. in dismissing the section 15 complaint on the basis that the justification defence was made, the Tribunal did nor err or fail to consider what it was that needed to be justified, nor did it err by taking into account irrelevant considerations.

Our comments
An employer is not under a duty to make reasonable adjustments unless it knows, either actually or constructively, that the employee in question is disabled and that the employee is likely to be placed at a substantial disadvantage because of that disability. An employer will therefore not get around the duty of providing reasonable adjustments unless it could not reasonably be expected to know. An employer also has a defence if it can show that there was a proportionate means of achieving a legitimate aim (objective justification).

Even if an employer did not know but should reasonably have known about an employee’s disability and substantial disadvantage, it will not avoid the duty. Reasonable steps and systems need to be in place to find out relevant information from employees so that the appropriate action can be taken.

Employers should take the initiative when it comes to adjustments in the workplace, given that there is no onus on a disabled person to suggest adjustments. Employers can be led by employees as to adjustments which may be required, and it is good practice for there to be an open dialogue about this. However, employers will not necessarily be excused from making reasonable adjustments just because an employee is not cooperating. Referrals and consultation with occupational health, the employee’s GP and disability organisations is recommended to ascertain what adjustments may be made to alleviate any disadvantage.

For further information on this, please get in touch with a member of the team today through info@kuits.com.