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How Equality Act 2010 applies to adult communication impairments in Britain

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Employment: recruitment and promotion

Recruitment and promotion are perhaps the area where disabled people feel discrimination is most likely. They are also particularly important because of the huge benefits of having a job (as many will see it) .

Adjusting the recruitment process

A disabled person may be the best person for the job, but may not be able to demonstrate this because of unnecessary barriers in the recruitment process. The employer is accordingly subject to the reasonable adjustment duty. It may be easier to show a breach of the reasonable adjustment duty than to argue that the reason one was turned down was discriminatory.

What is reasonable for the employer to have to do will depend on the circumstances. There are some examples of possible adjustments below.

Example: training
Managers are trained in awareness of communication disabilities, including interviewing people with them.

If a job applicant wants an adjustment, it is likely to be sensible to try and arrange this in advance. This might be done after the interview has been offered. A right to adjustments may be reduced - or there may sometimes no right - if the employer has not been told of the disability: see Knowledge of disability. There is also a defence relating to employer's lack of knowledge of the person being an applicant.

Reasons for being turned down for a job

Where a person is turned down for a reason related to their disability, there is the question whether it breaches the Equality Act.

In some cases there will be direct discrimination. Here the employer has no justification defence. An example might be if the employer makes a stereotypical assumption that because someone has a particular disability they cannot do a particular job: see Direct discrimination: Stereotyping which includes examples.

More often there will be no 'direct discrimination' but rather discrimination subject to the justification defence. This is broadly where the reason for turning someone down - such as their communication skills - is a result of the disability rather than the disability itself.

Example: communication skills
An employer turns down a job candidate with a communication disability because it believes the candidate would not have communication skills required to do the job. On a claim for 'discrimination arising from disability', it would be for the employer to show that the objective justification defence applies (or possibly a defence of not knowing of the disability). Assessing whether there is 'objective justification' would include the tribunal considering what reasonable adjustments could have been made to enable the candidate to do the job.

It can be difficult for the clamant to show why they were turned down. However, if the claimant makes out a prima face case of discrimination, there is a shift in the burden of proof.

Pre-employment enquiries

From October 2010, employers are restricted in what enquiries they are allowed to make about health and disability before making a job offer. See Pre-employment enquiries.

Some examples of adjustments

This section includes some examples of what can be helpful, and what may be unlawful. What is legally required under the Equality Act 2010, by way of reasonable adjustments or otherwise, will depend on the particular circumstances. Also the Equality Act usually only applies if the impairment is a 'disability' as defined.

Job specifications and documentation

Adjustments might include:

  • accessibility of information in job adverts, application forms etc;
  • flexibility as to how job applications are made;
  • considering whether job/person specifications are really required.

Oral interview

Case study: longer time
A woman with a stammer applied for a job on the desk in a library. In her application she mentioned she stammered and requested additional time in the interview. The panel arranged her interview for the end of a session so that there was time for it to run on without delaying a subsequent interviewee. The interview ran into lunch hour. She got the job.

Example: aphasia
A panel interviewing a candidate with aphasia make sure in advance they understand what aphasia is and what the particular individual finds helpful. They give him time to find his response, without interrupting, and if necessary repeat words rather than changing them. Different ways of communicating are used where appropriate, such as pen and paper. (Another person might find it easier if, for example, words are changed rather than repeated - there is no 'one size fits all' approach.)

Adjustments to the interview itself may not be enough. For example, the interviewers might pay greater regard to written application forms, rather than requiring something to be said in the interview. A person who has difficulty communicating may give oral interview answers that are too short, so that they may be at a disadvantage compared with other applicants unless further adjustments are made. See also below Alternatives to oral interview questions.

Presentations and assessments

Where the recruitment process involves tests, the reasonable adjustment duty may include adjusting how the skills are assessed. Factors in deciding what is reasonable are likely to include how far the skills are really needed for the job, and the possibility of reasonable adjustments once employed.

"The arrangements for interview included giving a presentation. This was said to be an essential requirement of the job. However, since being in post, for more than two years now, there has been no work situation which has required, as an essential, formal presentations."
Quote from person with a speech impairment

It may also be relevant (if it is the case) that the disabled person has a track record of doing what is being tested in the workplace, albeit they have problems with the 'test'.

For a case considering testing of oral skills, see DDA case on appeal (Iink to www.stammering.org) and, on the initial Employment Tribunal decision in that case, Levelling the playing field for promotions (link to www.stammering.org).

Alternatives to oral interview questions

There have been some cases in the context of stammering where giving written answers in interviews, and perhaps use of technology (text-to-speech), have been seen as possible reasonable adjustments (see eg Interviews: written answers (link to stammeringlaw.org.uk)).

Case: alternatives to oral interview should have been considered
The claimant said in his job application that he had a stammer, but did not request adjustments where the form asked about them. The Employment Tribunal held that by the time of the interview it was obvious to the interviewers that the applicant was under a substantial disadvantage in the session due to his severe stammer. The employer did allow more time for the interview, but the amount of information the applicant was able to convey compared to other candidates was much reduced.

The Employment Tribunal found that the employer was in breach of its obligation to make reasonable adjustuments. The employer could for example, without disruption or significant expense, have taken immediate practicable action to prevent the disadvantage suffered by the applicant by adjourning the question and answer session and devising, with the co-operation of the applicant, a suitable format for this element of the recruitment process which would have given the applicant an equal opportunity to that of the other candidates - eg written answers could have been sought to the pre-set questions, and/or use of technology could have been considered.
Yaqub v Calderdale Council (link to stammeringlaw.org.uk), Employment Tribunal, July 2003

Case: not told time limit for writing written answers
The employer had allowed written answers. However, the tribunal held the employer should have told the applicant how long he had to write answers, so he could manage his time. Not telling him was seen as a breach of the reasonable adjustment duty.
Yaqub v Bradford Council (link to stammeringlaw.org.uk), Employment Tribunal, 2006

For an Employment Appeal Tribunal decision in which which written interview answers were not allowed, HM Land Registry v Wakefield, see this article: DDA case on appeal (Iink to www.stammering.org).

Some links on adjustments in recruitment/promotion:

Aphasia/stroke

Stammering

Voice disorders