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Employment Appeal Tribunal (EAT), December 2008
An employment tribunal originally decided that a job candidate with a stammer should have been allowed to give written responses to interview questions, by way of reasonable adjustment. The Employment Appeal Tribunal reversed the tribunal decision, largely on the ground that some findings of fact by the tribunal could not be supported.
An Employment Tribunal originally decided that an applicant for promotion should have been allowed to give written responses to interview questions rather than having a (fully) oral interview. The employer said the oral interview was needed to test oral skills required for the job. The tribunal disagreed. It doubted the degree of oral skills required, but said that in any event it was not reasonable to test at an interview a person known to have a stammering problem in that context when the aim was to ascertain how he would cope with challenges in a work context.
Some further points on the original employment tribunal decision:
The employer appealed to the Employment Appeal Tribunal (EAT), where the employee was not legally represented and did not appear. The EAT reversed the tribunal's decision, largely on evidential grounds - some of the tribunal's findings of fact could not be supported. The EAT also said there is no principle that, if an honest employee asserts that a particular step should be taken, the step should be taken unless the employer establishes a good reason for not doing so.
There are various ways in which the EAT decision can be criticised (see below My comments). One point leaps out though: the EAT seemed to think a job interview could be valuable to assess how the candidate will communicate 'in a more confrontational setting' at work. With respect, a job interview is not an appropriate way to assess how a person who stammers will communicate in the workplace. An employer cannot assume that communication in the interview is an indication of how they will perform in the job. This is clearly illustrated by a discrimination case from Ohio, where a firefighter stammered in the interview but could communicate at a blazing fire. (Use of interview as oral test)
Where relevant in future, evidence could be brought on that point - either where written responses are requested as an adjustment, or where the person who stammers is happy to have an oral interview but the employer wrongly uses it to judge his likely workplace communication. This and also some other aspects of the decision are points which speech and language therapists may wish to bear in mind when writing expert reports (Lessons for writing SLT reports?). The case is unhelpful though in spreading a misleading message about stammering.
The case itself focused on giving written responses to interview questions (though some other adjustments were discussed). The EAT does not say that written responses cannot be a reasonable adjustment, even where a job requires oral skills. A claimant seeking written responses as an adjustment may need to address with the tribunal why he should succeed despite the EAT decision. However, each case depends on its facts and evidence. It might even just be a matter of bringing appropriate evidence (e.g. on inappropriateness of interview as an oral test, and disadvantage from having an oral interview even with adjustments) to succeed in a case on similar facts.
Many people who stammer may not want or need to give written responses, but may require other adjustments. I have a page of Examples of adjustments.
The applicant had a stammer. He applied for promotion, and said he would prefer to give written responses to the pre-set interview questions. The employer refused but allowed other adjustments to the oral interview.
The post applied for was Training Manager in E-Conveyancing. Some of the duties were devising, implementing and managing training activities; influencing and persuading key stakeholders through project boards and membership of specialist working groups/forums to ensure that novel decisions were agreed and implemented on time; and managing a training team. 'Excellent communication skills' were stated to be essential.
The employer refused the request to give written responses to interview questions. They insisted on an oral interview, albeit with some adjustments. The employer allowed him 45 minutes immediately before the interview in which he would be given a set of written questions that the panel expected to use, including some guidance regarding the type of supplementary questions that might be asked. He could then use the time available to identify and note down suitable words that he could use in his replies. In the interview he would be asked the questions by the panel and would have the opportunity to use his notes to prompt him in his verbal replies. The idea was that this should address any concerns regarding him not being able to formulate a particular word or think of an alternative. [My comment on whether preparation time useful] The employer would in any case set aside additional time for his interview in case he should have difficulty and need to take longer over his responses. (One of the employer's Personnel Managers acknowledged in the tribunal - see para 66 of EAT decision - that if the situation were to arise subsequently, she would consider giving him longer to look at the main questions and the opportunity to write his responses, but he would still have to undergo an oral test because of the nature of the job. However, the employer's head of HR seems to have considered that no further adjustment should have been made.)
The employee said he had serious reservations as to how effective these adjustments offered by the employer would prove. The employer, in their reasons for insisting on an oral interview, said it would put the employee at a disadvantage if either he were assessed on his current written record against the other candidates who have the opportunity to demonstrate the actual competences for the job at the interview, or if he were to supply written responses; he would only be able to supply responses to main questions; there would be no opportunity for the panel to ask follow up questions to clarify points etc. This was a senior, specialist post, and working in the role that he had been did not necessarily mean he could demonstrate the competences for this new role.
The employee asked to be able to present a written portfolio on ideas for the job to back up his answers. The employer said that at the end of the interview, when the candidate was normally asked if they wanted to add anything, he could summarise his ideas for the job on a single side of A4.
The interview went ahead with the adjustments proposed by the employer. The employee was one of six interviewed for the post, and did not get it.
It was accepted before the tribunal that the applicant had a disability within the DDA. He had previously brought and won a DDA claim against the employer when he did not obtain a promotion sought in 2004. In that previous case the employer had argued that his stammer was not a disability. A report had been jointly obtained from a speech and language therapist, Miss McM, and the Employment Tribunal then had decided that he did have a disability within the DDA.
In the light of that Employment Tribunal decision, the 2004 claim had been settled on terms that a sum be paid, and the employer should take advice on the appropriate format of interviews of people with a speech impediment and introduce changes as a matter of urgency. The employer did obtain advice from the Employers' Forum on Disability.
The Employment Tribunal held that the employer had not fulfilled its obligation to make reasonable adjustments. The information that could be given on the application form was limited. The interview was the opportunity to 'build on' this. To create a more level playing field for someone who finds it difficult to build on his application form orally, the patently obvious adjustment must be, as far as practicable, to give him the opportunity to do so in writing. Supplemental questions from the interview panel might be answered orally.
The tribunal rejected the employer's argument that the claimant was not as disadvantaged at the interview as he claimed. The employer had argued that the claimant managed to give "fluent focussed and clear responses to questions" throughout the interview. The tribunal said that this disregarded the covert symptoms of the stammer. The reason given for rejecting him for the job was that his answers "failed to show in-depth experiences and examples." This was just what one might expect from the claimant avoiding difficult words due to his stammer. Although the claimant may "get the answers out" without too much overt stammering, the meaning of his answers is distorted and the impression of superficiality created.
The employer argued that the interview was needed to test oral skills required for the job. The tribunal doubted that the job required as many oral skills as the employer claimed. In any event, said the tribunal, it was not reasonable to test at interviews a person known to have a stammering problem in that context when the aim was to ascertain how he would cope with challenges in a work context.
The employer could have looked at the claimant's work history, asking managers how his stammer actually affected him in certain aspects of his work. Just looking at appraisals was not sufficient as appraisal forms were written to a script.
Also any testing of oral skills should be specifically with reference to the requirements of the job, and done as a separate skills test rather than using the interview as a test of his general oral skills. The tribunal later revoked its recommendation to that effect for technical reasons, but it clearly still represented the tribunal's view.
The claimant had particular speech difficulties in interviews and large scale presentations. He was OK, for example, in smaller groups or answering customer queries.
Link to more detail on the original Employment Tribunal decision.
Held by the EAT on appeal: the Employment Tribunal decision must be set aside:
The EAT decided not to send the case back to an employment tribunal for re-hearing. It considered that had the Employment Tribunal not made the errors, the Employment Tribunal would have had no alternative but to find that the employer was not required as a reasonable adjustment to dispense with the oral interview.
The employee was not legally represented and did not appear before the EAT (see below Employee not represented).
The EAT saw three essential strands to the Employment Tribunal's conclusion that there was a failure to make adequate reasonable adjustments:
Taking these in turn:
In the EAT's view, nothing which the speech and language therapist Miss McM wrote in her report (prepared for the previous DDA claim) supported the interpretation that there ought to be no oral interview. One adjustment recommended by Miss McM had been that the employer should consider his work history of specific oral skills required for the post. The Employment Tribunal had understood her report as saying that this work history should be looked at before or instead of interview. Miss McM went on to list further adjustments relating to oral interviews - namely extra time, opportunity to prepare a written response to questions which he can then verbalise at oral interview, and interview panel limited to one or two members. The Employment Tribunal had read the report as saying that these further adjustments only arose if an oral interview could not be dispensed with. The EAT disagreed; the report could not reasonably be interpreted as recommending that if possible there should be no oral interview. (EAT decision paras 56-62, 65-72)
As a matter of law, said the EAT, the Employment Tribunal were allowed go further than Miss McM in its conclusions as to what were reasonable adjustments. However, the Tribunal had not proceeded on the basis that Miss McM's report did not identify all reasonable adjustments which should have been made. It had gone on the basis that Miss McM advised dispensing with an oral interview unless it could not be reasonably avoided. That interpretation of her report was one which no reasonable tribunal could reach. (EAT decision para 73)
The employer also argued (a) that it was entitled, in terms of reasonableness, to rely on Miss McM's report when making adjustments to the interview, (b) that it made those adjustments, and (c) that the position was not that the employee was reluctant to enter upon what was orally demanding but that he, with the adjustments, was able adequately to cope with the interview as modified (EAT decision para 64):
There was also a report by another speech and language therapist, Mrs R. This was dated January 2007, after the tribunal proceedings had started. It recommended allowing more time, opportunity to give written answers instead of verbal, opportunity to submit a portfolio of ideas to support his interview, and the opportunity to have a one to one interview. However, the EAT said it was not open to the employee to seek to rely on Miss R's report. The report was not available at the material time, it was not relevant to the question of how to interpret Miss McM's report, and in any event the Employment Tribunal did not rely on it, or even refer to it. (EAT decision paras 27, 70) [My comments]
One argument raised by the employee was that the Employment Tribunal did not decide that the interview should have been dispensed with. He said that in the interview he had not been given sufficient time to write down answers to the questions put to him in advance. However, the EAT said that the Tribunal did advocate the abandonment of the interview. (EAT decision paras 65-67)
The Employment Tribunal had been somewhat sceptical of the extent to which the post required oral skills. The EAT was unanimously of the view that a fair reading of the documents as a whole led to the conclusion that the post involved oral communication skills. The post was, said the EAT, a senior management post; its holder would have to manage a training team; such a task ordinarily surely requires oral communication skills. Any other understanding of the relevant documents could not reasonably be reached. (EAT decision para 90)
(I should mention that whilst the EAT evidently understood it to be a 'senior' management post, according to the Employment Tribunal it was only one grade up from the employee's current post.)
There had also been oral evidence before the Employment Tribunal on the oral skills required for the post. The EAT found the way the Tribunal had considered this evidence to be unsatisfactory (EAT decision paras 91-98). For example, one of the employer's witnesses had said:
"Main duties of job. Require individual to meet with groups of senior staff and influence them. Those groups will be interjecting, influence and persuade, challenging. If cannot perform in a 3 panel highly unlikely to cope in a large meeting at senior level. Less structured. These people will not assist in getting best info. from them. Less support for individual will be argument against them."
The EAT also criticised the Employment Tribunal's rejection of evidence that it was obvious from the job description that it required oral communication skills. The job description referred to influencing and persuading, in specialist working groups. The Employment Tribunal had said (at para 3.42) "Can people not be influenced and persuaded by written argument?" (NB: the Employment Tribunal also suggested here, though not mentioned by the EAT at this point, that in any event a person's ability to 'perform' orally at interview is not a good way to test ability to be a member of a specialist working group.) The EAT said that - while of course people may be influenced and persuaded by the written word - if that were always sufficient then "meetings, discussions, working groups and forums would not be needed (other than to pass paper); and forensically no oral advocacy would be needed if written submissions were provided. The fact that people can be influenced by the written word cannot justify the conclusion that oral communication on the part of the person who is tasked with persuading has no value." (EAT decision paras 100-101)
The EAT then addressed comments at paragraph 3.44 of the Employment Tribunal decision. Para 3.44 read in part:
"Whilst accepting she [one of the employer's witnesses] realised the interview situation would be detrimental to [the employee's] fluency, she still asserted that if a person could not be fluent at an interview, they could not satisfy the requirements of this job. She said she and the stakeholder viewed the oral interview as the best way to assess oral skills which in practice may need to be maintained when there is a degree of confrontation. She said next that the atmosphere in the interview was non-confrontational! In short her evidence was self contradicting and at times non sensical."
The EAT disagreed. In the EAT's view, it was neither logical nor commonsense for the Tribunal to regard it as contradictory or nonsensical for the witness, on that factual basis, to say that an oral interview was seen as the best way to assess the employee's oral skills. "It is not possible in an interview setting to reproduce exactly the atmosphere or demands of the shop floor or workplace; yet an employer is surely entitled to regard an interview as a valuable tool in assessing how a candidate for promotion may react in a more confrontational setting." The EAT must not substitute its view for that of the Tribunal who heard the evidence over five days; but this point was not one of evidence. The evidence referred could not, in the EAT's judgment, justify the conclusion. (EAT decision para 103) [My comments]
The EAT considered that the Employment Tribunal had approached their factual conclusions on the basis that if the employee requested a particular step by taken to alleviate his disability and was not in so requesting dishonest, then in the absence of good reason why not that step should have been taken by the employer.
The EAT said that this approach involves a misdirection of law:
"...in a disability discrimination case, there is no principle that, if an honest employee asserts that a particular step should be taken, then that step should be taken unless the employer establishes a good reason for not doing so. The tribunal's task is to decide whether it is objectively reasonable for the employer to have to take the adjustment which is in issue. Whether the employee is or is not honest in his belief in the need for the step which he contends ought to have been taken is neither necessary nor sufficient for the tribunal's carrying out of that task (although in practice it may be that the tribunal would, if they regard the employee as dishonest, be less likely to find that the employer ought reasonably to have taken the step relied upon); and the assertion by an employee, honestly or otherwise, that a step ought to have been taken does not put any burden on the employer to prove a good reason why it was not taken."
(EAT decision paras 109-115) [My comments]
The EAT also addressed whether the employer had failed to make the adjustment recommended by Miss McM that the employee's work history should be considered. The Employment Tribunal had said that, according to the employer's witness, considering the application form and appraisals was something they did for every candidate. Therefore no step was being taken specifically to ameliorate the employee's stammering difficulties - for example, contacting his managers to find out what the claimant was capable of doing at work rather than what he was not capable of doing would have shown his oral skills in a work environment.
The EAT said the Employment Tribunal's conclusion that more should have been done could not be sustained on the basis put forward by the Tribunal (my emphasis, see comment below). Miss McM's recommendation was that the employee's work history should be considered. All candidates' application form and appraisals were considered. The application form was not a mere pro forma but gave the candidate an opportunity to provide information about his competencies. Appraisals of a long service employee, said the EAT, "were, as a matter of common sense, or at least could be likely to contain a substantial amount of history and information". The fact that this was done in the case of every candidate, said the EAT, could not support a conclusion that more should have been done in the employee's case. (EAT decision paras 116-117) [My comments]
The EAT criticised the Employment Tribunal's use of strong and vivid language, including its trenchant critisisms. Some of the modes of expression chosen by the tribunal were not desirable and might be thought to indicate a lack of total objectivity. (EAT decision paras 44-45)
The EAT was also concerned that the Employment Tribunal's thought process was influenced by its view - which the EAT saw as unjustifiable - that the employer held stereotypical assumptions about the employee's disability and were unwilling to consider variation to their usual selection process. (EAT decision para 86)
The employer was not legally represented and did not appear before the EAT.
The EAT says it sought to encourage the employee to be represented and had pointed him in the direction of sources of representation. However, the employee had not been present or represented before the EAT. He had written to the EAT, courteously explaining his reasons, which the EAT respected. Those reasons were not based upon his disability. The employee had put before the EAT a detailed written submission, which the EAT had considered. (EAT decision para 31)
Firstly, this case does not mean that giving written responses instead of an oral interview cannot be a reasonable adjustment, even where the job requires oral skills. The case was decided on its facts and evidence. However, the EAT decision is likely to be looked at by future tribunals, at least where written resposes are sought, and claimants may have to make their case "in the face of" the decision.
The EAT's decision was largely based on its conclusion that findings of fact by the Employment Tribunal were perverse - in other words no reasonable tribunal could have reached them. For the most part, I do not propose to comment on that conclusion. I will, however, comment on what legal results should have flowed from the EAT's main conclusions if they are correct, those conclusions being that the SLT report did not recommend dispensing with an oral interview and that the post required significant oral skills. This is dealt with below under The reasonable adjustment rules.
First though I will pick out some less technical and more practical points from the EAT decision. I will start with what the EAT said about an interview being used to test oral skills, given the potential this has to mislead in future:
The EAT (at para 103) said it was not logical or commonsense for the Tribunal to regard it as contradictory or nonsensical for a witness, where the job required a degree of confrontation, to say that an oral interview was seen as the best way to assess the employee's oral skills. "It is not possible in an interview setting to reproduce exactly the atmosphere or demands of the shop floor or workplace; yet an employer is surely entitled to regard an interview as a valuable tool in assessing how a candidate for promotion may react in a more confrontational setting."
The EAT here seems to assume that an interview was, on these facts, an appropriate way to assess how the communication of someone who stammers will be in the job. With respect, this is wrong. Stammering can vary a great deal between different situations. For very many who stammer an interview will be a situation where stammering effects are more severe. A person may find 'confrontational' situations, for example, or some of them, significantly easier.
The EAT's approach is reminiscent of that of the lower court - overturned on appeal - in an Ohio firefighter case from the United States. In that case, the appeal court held there to be discrimination where an applicant for a fire fighter job was turned down because he stammered in the interview. He had worked as a fire fighter for 10 years and his stammering did not interfere with the performance of his job duties. The Ohio Court of Appeals said:
"The firefighters and assistant safety director simply assumed that Liebhart's stuttering is caused by nervousness and would get worse in a stressful fire situation.... They made their assessments of his abilities on the basis of assumptions about his handicap which had no basis in fact. This type of discrimination is exactly what the handicap discrimination law was designed to eliminate."
Of course the EAT here probably did not have evidence whether he could do the job or not, whereas in the Ohio case the evidence was available. The point is, though, that it is not appropriate to use communication difficultes at a job interview to assess a person as unsuitable to perform a particular job.
The EAT may have assumed that a relatively supportive atmosphere at the interview would make speech easier than in a confrontational situation. As in the Ohio case though, that is not a fair assumption to make. Just by way of an example, I don't remember that I had much of a speech problem when negotiating with someone - it was one of my easier situations.
The employer seems to have made a similar assumption as regards size of meeting. Notes from the evidence given by one of the employer's witnesses included: "If cannot perform in a 3 panel, highly unlikely to cope in a large meeting at senior level." However, it cannot be assumed that a person will find smaller meetings easier than larger ones (size may be a contributing factor, but so may other important factors). Also, and most importantly, a job interview is different from a work meeting large or small. Furthermore, the possibility of reasonable adjustments in the job needs to be considered.
It should be noted that the EAT did not comment on some of the Employment Tribunal's other statements on this area, for example:
"...we do not accept that it is reasonable to test at interviews a person known to have a stammering problem in that context when the aim is to ascertain how he will cope with challenges in a work context. If [the claimant] knew he was going to a meeting about a subject he had mastered he may not be dysfluent at all."
Evidently the Employment Tribunal had seen from the evidence how the employee's stammer differed in different situations and drawn this sensible conclusion. Perhaps the EAT felt it could not contest that statement in general - but considered (wrongly) that it was on stronger ground suggesting that performance at interview was a fair assessment for a more confrontational situation. The principle that an interview was not a suitable oral test for the work situation was a major strand of the Employment Tribunal's decision, albeit not listed as such by the EAT and not considered by it to any great extent.
The previous paragraphs largely focus on the general principle. In the particular case before the EAT there was evidence that the employee was better in smaller groups than in large ones. However we do not know, for example, whether the specialist working groups would count as 'small' or 'large', or generally how well he could deal with them. A job interview - even though with fewer people on the panel than in a working group - is not an appropriate guide to this.
To address this point in future cases, it may help to deal with the issue in any speech and language therapist report. See below Lessons for writing speech and language therapist reports? The EAT said (at para 103): "the evidence which is referred to cannot, in our judgment, justify the [Employment Tribunal's] conclusion." A future claimant for whom the point is relevant will doubtless want to be able to point to evidence on it.
See also my page Examples of reasonable adjustments: Assessment of oral skills: Oral interview not appropriate way to do this.
The Employment Tribunal had said that it was not reasonable to test at interviews a person known to have a stammering problem in that context when the aim was to ascertain how he would cope with challenges in a work context. Accordingly:
Any assessement of oral skills should take into account any reasonable adjustments that should be made in the job. (The Employment Tribunal criticised the employers' procedures for failing to do this and creating a 'chicken and egg' situation).
EAT decision on work history: I should add that the EAT's criticism of the Employment Tribunal's suggestion that history of work skills could have been investigated more by the employer seems not to be on the substantive issue but on the Tribunal's reasoning as expressed in its decision. If the Tribunal had said, for example, that OK there had been some consideration of work history as recommended in Miss McM's report, by considering application form and appraisals as was done for everyone, but the Tribunal considered that more was needed and reasonable to help eliminate the substantial disadvantage, then the EAT's criticism would not apply. I strongly suspect that the Tribunal would have said that if asked. The Tribunal had commented that appraisal forms are written to a script. It evidently felt they were not enough - the employer could have done more, such as asking managers about oral skills in different aspects of his work.
The EAT may have said that the employer was entitled to rely on the report by Miss McM, a speech and language therapist (EAT decision para 77). This is unclear though, and would in any event be subject to limitations - see below Employer entitled to rely on report by speech and language therapist?
However, in general speech and language therapist (SLT) reports clearly do and should influence on case decisions. When preparing a report, it may be worth SLTs bearing in mind how the employer and tribunals in this case gave quite different meanings to Miss McM's report. SLTs will doubtless be in contact with lawyers involved as to what should be in their report. The lawyers should know about running a tribunal case, including about expert reports - I do not. However, these are some thoughts that occur to me in the light of the case:
I doubt that preparation time before an oral interview is an adjustment that should be used often.
One of the adjustments recommended in Miss McM's report was that the employee should have the opportunity to prepare a written response to questions which he can then verbalise at the time of his oral interview (EAT decision para 57). The employer said the purpose of the preparation time was to identify and note down suitable words that he could use in his replies, to allow for difficulties thinking of the right words (EAT decision para 22 and 24).
The idea may just have been to enable the employee to get clearer what he wanted to say, which might help the stammer - though the employee had severe reservations as to whether the preparation time would be effective (EAT decision para 23).
It is also possible - but not at all clear - that the idea here was to enable the employee to substitute words he finds difficult to say with ones he can say. IF this was the purpose, the preparation time may be a useful adjustment for a person if word substitution is important to them and they feel this time will be helpful. (As mentioned, in this case the claimant may not have found it much help.) However, word substitution is a symptom of stammering rather than a solution to it, and speech therapy tends to encourage a person towards saying the word they want, even if they stammer. It is therefore important that employers and tribunals should not get the idea that preparation time to help word substitution is appropriate for people who stammer as a whole. In particular, someone who stammers should not be 'expected' to adopt this approach if he does not want to.
To expand on this a bit: word substitution and other forms of avoidance, including staying silent or trying to avoid certain speech situations, are common amongst people who stammer. It is very understandable in a world where fluency (or at least 'not stammering') helps a person conform with the 'norms' of society, and/or just avoids the struggle of trying to get the word out. However, as I understand it, avoidance tends to have a negative effect on one's speech. The more a person avoids, the less they feel able to say fluently. Saying what one wants even though one stammers, and speaking in situations where (initially) one is afraid to speak, expanding one's comfort zones, can have a therapeutic effect on stammering.
There seem to me further issues relating to the preparation time which were not addressed by the EAT:
The EAT set these rules out (paras 50-53 of its decision), but with respect it seems to have referred to them very little in the rest of the decision. If one puts the EAT's findings in the context of the legal rules, was it correct for the EAT to say the Employment Tribunal would have had no alternative but to find that written responses would not be a reasonable adjustment? Also, what about other reasonable adjustments?
In the light of the reasonable adjustment rules, key questions were:
It seems to have been accepted that the answer to 1. was 'yes'. The dispute was on 2. and 3. However, those issues were not clearly addressed by the EAT. Given that the EAT substituted its own conclusion for that of the Employment Tribunal, presumably it ought to have addressed them.
On issue 2 - was he under a substantial disadvantage even with the adjustments actually made - there were findings which, in the EAT's view, presumably made the Employment Tribunal decision unreliable: particularly the Tribunal's misinterpretation of Miss McM's report, and its view that a particular step should be taken if an honest employee asserts that it should be, unless the employer establishes a good reason for not doing so. However, it is very possible that even apart from those points the Tribunal - or another Tribunal given the matter to reconsider - would have found the employee to be under a substantial disadvantage due to his stammer in an oral interview, even with the adjustments offered by the employer. The disadvantage found by the Employment Tribunal was essentially that although the claimant may "get the answers out" without too much overt stammering, the meaning of his answers is distorted and the impression of superficiality created. The EAT hardly considered this at all. Was it clear that the adjustments actually made eliminated the substantial disadvantage? It seems to me definitely not: -
Incidentally, Mrs R's report did mention written responses as an adjustment to be made. I do not understand why the EAT refused to take that report into account in considering what conclusion a new fact-finding tribunal might reach. The court was not considering whether the employer had a 'lack of knowledge' defence for failing to make reasonable adjustments (for that defence, the employer's knowledge at the time of the alleged discrimination would of course be relevant). Subsequent expert reports regarding the disability and its effects at relevant times are a standard feature of tribunal proceedings. The report tends to support the employee's argument that he would be under a substantial disadvantage even with the adjustments made the employer.
On issue 3 - what further steps if any should reasonably have been taken to prevent there being a substantial disadvantage - again, there were findings which, in the EAT's view, presumably made the Employment Tribunal decision unreliable: including the oral requirements of the job. However, if a fact-finding tribunal found on issue 2 that the employee would be at a subtantial disadvantage even with the employer's adjustments, it should presumably have gone on to ask how far further reasonable adjustments can be made to eliminate that disadvantage. What is reasonable has to be decided objectively by the Tribunal (Smith v Churchills Stairlifts, 2005). Some possible adjustments - which could be approrpiate whether or not there is an oral interview - are as follows:
In the light of these points, it seems to me that the EAT's decision to substitute its own conclusion rather than remit the case to a fresh Employment Tribunal for reconsideration was questionable. Even assuming the EAT's view about using the interview as an oral test (though might a fresh tribunal have heard expert evidence on stammering as to whether that was appropriate?), a tribunal reconsidering the case might have found that other reasonable adjustments, apart from allowing written responses, should have been made.
There may well be no principle that, if an honest employee asserts that a particular step should be taken, then that step should be taken unless the employer establishes a good reason for not doing so.
What is important though is that it is for the employment tribunal to determine whether, for example, there is a substantial disadvantage, and whether the step is a reasonable one for the employer to have to take. As to whether there is a substantial disadvantage and whether a particular step would help this, the employee's evidence must at least be of great importance to the tribunal in reaching its conclusion. Indeed the Employment Code of Practice, which tribunals (including appeal courts) must take into account, stresses the value of employers listening to disabled people, to identify the best way of meeting their needs (para 2.5 of Code, which was not addressed by the EAT).
The employer in this case seems to have agreed the employee's views were important. When offering him adjustments, the employer wrote (EAT decision para 22): "As an organisation we place much importance on an individual's own view in these matters as we consider that you are well placed to consider what adjustments you require..."
It's worth mentioning too that the burden of proof shifts to the employer if the claimant makes out a prima facie case.
The EAT may possibly have considered that the employer was entitled to rely on the report by Miss McM, a speech and language therapist (EAT decision para 77). This is not clear though. If the EAT did take that view, I find it surprising and difficult to reconcile with authority. Also it would be rather contradicted by what the EAT had said previously (EAT decision para 73), that as a matter of law the Employment Tribunal was allowed go further than Miss McM in its conclusions as to what were reasonable adjustments.
The EAT's reasoning is extremely sparse at para 77. The EAT says for example that there "can be no doubt that it was, in the Tribunal's view, reasonable [for employer] to rely on Miss [McM's] advice". However, especially in view of the quote from the Tribunal given below, it is very doubtful that the Tribunal would have taken that view had it interpreted the report as the EAT had done, namely as failing to mention an adjustment (non-oral interview) which the employee said he needed.
It's difficult to know whether the EAT decision is likely enough to be interpreted in favour of reliance (to some extent?) on an expert report for the point to be worth spending time on. For the record though, I don't believe that as regards reasonable adjustments an employer can simply rely on an expert report against what the disabled person says:
This is a point which was probably not important to the decision, but which should not go unmade. I quoted above from para 3.44 of the Employment Tribunal decision (discussed by the EAT at para 103 of its decision). Para 3.44 reads in part:
"Whilst accepting she [one of the employer's witnesses] realised the interview situation would be detrimental to [the employee's] fluency, she still asserted that if a person could not be fluent at an interview, they could not satisfy the requirements of this job..."
It is not fluency that should be assessed but communcation skills. It is perfectly possible for a person to have good communication skills while stammering. (See Is fluency a communication skill? - link to BSA website).
Examples of reasonable adjustments
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