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Employment Tribunal, Case No. 2513066/06, July 2007
THIS EMPLOYMENT TRIBUNAL DECISION HAS BEEN REVERSED ON APPEAL, in the light of the evidence in the particular case. This page summarises the original Employment Tribunal decision - but it is important to look also at the appeal decision.
The Employment Tribunal decided that a person with a stammering problem in interviews should have been allowed to give written responses to interview questions, even if the job required oral skills. The decision discusses how to ascertain oral skills in the actual work situation, being under a disadvantage at interview even if one sounds fairly fluent (covert stammering), and the need to consider reasonable adjustments to the job itself.
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 insisted on an oral interview, albeit with some adjustments.
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.
In response to a suggestion by the employer that it would be unfair to give the claimant pre-warning of questions and enable him to formulate answers at greater length than other candidates, the tribunal suggested possible ways round this. The claimant could have been given the questions by email from one room to another, one by one, with a reasonable time limit within which to write answers, or all candidates could be given time in advance to consider or type answers. More on allowing written responses...
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 (see Covert nature of stammer below). 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. However, the tribunal said 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.
The tribunal also considered that 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. For technical reasons the tribunal had to delete a recommendation to that effect, but this was clearly still its 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. More on not using interview to test oral skills, and how to test oral skills.
The tribunal also stressed that where the job required oral skills, possible reasonable adjustments to the job itself should be considered. More on adjustments to job...
The claimant has a stammer. He complained that his employer failed to make reasonable adjustments in relation to an interview for promotion.
The claimant's stammer affected him more in interviews and public speaking. He could manage within a small group though, and was more relaxed if he knew people. He was able to train small groups of staff. He could also speak to customers about their problems and queries.
An oral interview, or an "assessment centre" at which again an oral interview played a part, was the accepted norm for promotion with the employer. The space on job application forms was restricted, and candidates were forbidden from adding additional sheets of information. The interview was the opportunity to 'build on' the content of the application form. The tribunal commented:
"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."
A report by a speech and language therapist Ms McM, jointly commissioned by both parties, had been prepared for a previous DDA claim brought by the claimant. (That claim was settled out of court after a tribunal held the claimant was 'disabled'.)
Ms McM's report stressed the covert (hidden) nature of many of the symptoms of the claimant's stammer. In a large group situation he became audibly and visibly more dysfluent, with avoidance of 'difficult' words leading to total silence (silent blocks) or perhaps substitution of an 'easier' word. This substitution might alter the whole gist of the message being conveyed to the listener, consequently giving the impression that the claimant may not have responded as fully as possible to what an interviewer was expecting.
In the previous DDA claim, the employer had argued that the claimant did not have a disability, and had not accepted that the claimant managed at work only with difficulty. This, said the tribunal, completely ignored the covert nature of his symptoms. In the tribunal's judgment, the employer was unwilling or unable to accept the clear message of Ms McM's report, that the mere fact that the claimant did not fall silent or stammer audibly was no proof at all that he had conveyed the message he would like to convey.
Ms McM later expanded on this in a supplemental report. She said that because of avoidance of difficult words, the claimant's responses might appear vague or non specific to the topic being discussed - or it may even appear that he has little to offer in terms of information being asked of him. Consequently within group situations, or one-to-one stressful verbal interactions (such as presentations or inteviews), it may appear he is responding with lack of depth to a topic, but in fact it may be his covert stammering symptoms that make this seem to be so.
The tribunal commented that these were exactly the sentiments expressed by the employer's witnesses about the claimant's performance at interview. Ms McM's report was clear. In presentations and oral interview, the claimant's disability was highly likely to make him appear to be shallow in his responses. More on this below. Similarly, there was no reason at all to conclude that such shallowness would be apparent when oral skills were required in the context of his job.
The tribunal also commented on this area in a subsequent review decision, emphasising that it was not changing their views:
"The whole point about covert stammering symptoms, which none of the members of the Tribunal appreciated before reading Ms [McM's] advise, is that a person afflicted by these symptoms may speak words with relative fluency but the meaning which the listener would glean from those words is not the meaning which the speaker would like to convey. Nor is it the meaning which we found the claimant could convey if allowed to do so in writing."
Ms McM made various recommendations for adjustments that should be made. These included:
Where there was a need to assess oral skills for the post, the tribunal read this as saying to first look at work history before or even instead of using a general interview as an oral skills test. To the extent an oral interview could not be dispensed with, the 2nd to 4th recommendations would help. (This interpretation was a key point criticised in the appeal decision by the Employment Appeal Tribunal.)
The employer offered two of the adjustments suggested by the SLT report:
The tribunal said that the employer seemed to have paid no more attention than usual to the application forms, past appraisals and 'work history' (to use Miss McM's phrase), which could have reduced the claimant's need to explain himself orally at the interview. There was no attempt, for example, to speak to his local managers and colleagues to ask how his stammer affected him in certain aspects of his work.
Given that the employer insisted on an oral interview, the claimant asked to be allowed to submit written documents to the panel in addition. The employer responded that the candidate was normally asked at the end of the interview if he wanted to add anything. The employer was willing for the claimant at that point to provide a single side of A4 with a summary of his ideas for the job.
The claimant told the employer that his preferred option would be not to have the oral examination by the interview panel. The employer refused this request. The tribunal rejected the employer's reasons for doing so, and held that allowing written responses to pre-set questions was a reasonable adjustment that the employer should have made:
In refusing the request not to have an oral interview, the employer said it would put the claimant at a disadvantage to be assessed on his current written record against candidates who could demonstrate the actual competencies for the job at interview; and any written response he gave could only be to the main questions and the panel would not be able to not ask follow-up questions to clarify points.
The tribunal gave this fairly short shrift, saying "How is it a disadvantage to a person with a speech impairment to be able to avoid speech?" After giving the answers to pre-set interview questions in writing, the claimant could then meet the panel to answer supplementals. This would reduce the need to speak. He might not have a level playing field with other candidates, but for him the field would be closer to level that the adjustments offered by the employer.
A key justification put forward by the employer for an oral interview was to test oral skills for the job.
The tribunal did not accept that that this was an operative reason in the minds of those refusing the claimant's request. However, even if it had been, the tribunal did not accept that it would be a valid reason for an oral interview. The tribunal said:
"...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."
The tribunal commented elsewhere that the employer's approach was that in order to be appointed to a job which has an element of oral skills one first had to be able to pass the interview. The fact that the oral skills in the job might be quite different from those required at the interview did not seem to figure in their approach.
The tribunal also considered how far oral skills were required for the job the claimant had applied for. The job was stated to require "excellent communication skills". The tribunal disagreed that it was obvious these had to include excellent oral communication skills. (That conclusion was one of the main points criticised in the appeal decision by the Employment Appeal Tribunal.) The employer argued that two aspects of the job were representing and making decisions on behalf of a superior, and also influencing and persuading key stakeholders through project boards and membership and specialist working groups/forums to ensure that novel decisions were agreed and implemented on time. The tribunal responded: "Can people not be influenced and persuaded by written argument? In any event, what makes [the employer's witness] think that the claimant or any candidate's ability to be a member of a specialist working group can be tested by his ability to 'perform' orally at interview."
The employer asserted that if a person could not be fluent at interview, they could not satisfy the requirements of this job. Their witness saw 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. The tribunal saw this as self-contradictory, however, because the witness said next that the atmosphere in the interview was non-confrontational.
The tribunal found it particularly irritating that the employer seemed to think persuasion could only happen through oral skills. There was no evidence at all that the claimant lacked the ability to persuade in this situation, by logical knowledgeable argument presented by a person with many years experience of the area. Those sought to be persuaded here were more likely to listen to knowledgeable argument than to a slick but superficial selling patter. When the claimant knew he was talking about matters he understood well, his oral delivery, as well as his written representations, could be more than adequate.
The employer also gave other potential reasons for refusing the request to have part of the interview replaced by a written submission. The tribunal rejected these:
The tribunal commented that everyone is nervous when they go for an interview. In the claimant's case, anything which reduces his level of stress and the consequent effect on his abilility to communicate orally without thereby giving him an unfair advantage over others should be done if practicable. There was no reason to doubt the claimant's word or good faith. If he believed giving written answers or otherwise supplementing his application in writing (even if he answered supplemental questions orally) would reduce his level of stress, then in the absence of good reason that was a step which should have been taken whether the claimant specifically asked for it or not. The tribunal had heard no good reason for not taking that step. (Note, however, the Employment Appeal Tribunal said the claimant's honest belief was not enough.)
The other candidates, said the tribunal, had the opportunity to 'build on' their appraisals and application forms. Allowing the claimant at least in part to 'build on' his appraisals and application forms by using the written not the spoken word would have helped.
It was not reasonable to test in an interview the oral skills of a person known to have a stammering problem in that context, where the aim was to ascertain how he would cope with challenges in a work context (above). So how could the employer have assessed whether the claimant had oral skills required for the job?
Ms McM had recommended that the claimant's work history of specific oral skills required for the post should be considered.
The employer interpreted this suggestion as meaning just that the employer should consider the claimant's application form and appraisals, which they did for every candidate anyway. The tribunal on the other hand suggested that the employer could, for example, have contacted the claimant's managers (or later in the decision, "local managers and colleagues") to find out what the claimant was capable of doing at work rather than what he was not capable of doing. This would have shown his oral skills in a work environment.
The employer said they had not contacted the claimant's managers because these should have written all the relevant information in his appraisal. The tribunal, however, commented that appraisal forms are written to a script. The other candidates had the opportunity to 'build on' their appraisals and application forms.
The tribunal read the Ms McM's report as saying, where there was a need to assess oral skills required for the post, to first look at work history before or even instead of using a general interview as an oral skills test. To the extent that an oral interview could not be dispensed with, the 2nd to 4th reasonable adjustments recommended by the SLT would help. (Of course the tribunal went on to say that the interview was not a legitimate test of the claimant's oral skills anyway).
Had the employer paid more attention than usual to the application forms, past appraisals and 'work history' then, said the tribunal, it would have reduced the claimant's need to explain himself orally at the interview.
The tribunal initially recommended that 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. In a subsequent review decision, the tribunal revoked this recommendation on technical grounds. A tribunal may only recommend action to be taken 'within a specified period', and the recommendation did not specify a period. However, it is clear from the review decision that the Tribunal did not intend to change its views. Indeed it commented that the future relationship between the parties could be ameliorated quite simply by the employer adopting an approach to the employee's requests for adjustments along the lines of the recommendations which the tribunal had deleted.
In its main decision the tribunal also commented (and this was not revoked) that there had not been "an aptitude test, included specifically and openly at the interview and intended to replicate the real life situation the candidate may, if appointed, confront when doing the job."
The tribunal objected to the fact that possible reasonable adjustments to the job itself which might help the claimant were considered only after one had got through the interview, which might require oral skills unnecessary for the job. This was a 'chicken and egg' situation.
The employer said their approach was that the interview panel did not consider whether the speech impediment might prevent the claimant from taking up the post. The panel just considered who was the best candidate for the job based on the performance at interview. Only then would managers consider whether the disability might cause difficulties and consider whether reasonable adjustments could be made. Only if adjustments could not be made or would be inadequate would the candidate not be appointed.
The tribunal commented however that this meant that in order to be appointed to a job which has an element of oral skills one first had to be able to pass the interview. The fact that the oral skills in the job might be quite different from those required at the interview did not seem to figure in the employer's approach. There was no specific, open aptitude test aimed at testing oral skills in the actual job situation. Miss McM had of course said that one way of assessing this was to look at his work history. Only if the person was 'successful' at interview would adjustments to the job be considered. The employer's approach effectively meant that a person with a speech impairment would NEVER be given the chance to ask for reasonable adjustments to the job to be made.
For example, where a job as originally envisaged had some presentational requirement, the type of adjustment in DDA s.18C(2)(b)(g) and (l) (allocating some duties to another person, training or mentoring, supervision or other support) which might enable him to do the job would NEVER be envisaged, let alone implemented.
It was clear that adjustments could be made from what was already happening on the ground in his existing job. It had been decided there that should any occasion present itself whereby he needed support, the manager or another training instructor would undertake general presentations to large groups. To date he had not needed assistance.
The claimant did not have to show he would have got the job had the adjustments been made, said the tribunal, though this was relevant when it came to deciding the remedy. DDA s.4(2)(b) focused on opportunities for promotion, i.e. the chance he would have done better than he did if adjustments had been made (he came 5th out of 6 people interviewed). One must appreciate the damaging pyschological effect of continued failure, particularly when there was a consistent theme of it being linked to disability. Further - though s.4(2)(b) was sufficient - it was also a 'detriment' under s.4(2)(d) to be disadvantaged and humiliated.
The tribunal acknowledged that the employer undoubtedly had policies dictating that the best person for the job should be appointed. Many of these would be to ensure equality of opportunity between people of all sexes, races etc.
However, in the House of Lords case of Archibald, Baroness Hale had pointed out: "Advertisment and competitive interview is only one way of securing that appointments are made on merit." In the Archibald case, unlike here, a statutory provision required all appointments to be made 'on merit'. The employer in that case had argued it would be contrary to this provision to promote without competitive interview.
Given that the House of Lords in Archibald thought the statutory provision should be read so as to give way to the reasonable adjustment duty, then (said the tribunal) all the more should the reasonable adjustment duty in this case take precedence over policies and procedures of the employer dictating that the normal way of assessing competences is by oral interview.
The tribunal also commented that it was a common error for employers to think that because they had done something reasonable to assist the disabled person, they had thereby complied with the reasonable adjustment duty. The duty meant the employer had to take all steps which were reasonable.
As set out in the Employment Code of Practice (paras 2.4-2.6), listening carefully to the disabled person will help the employer meet their obligations by identifying the best way to meet the person's needs. Expert advice could be important sometimes, but generally speaking unless there is cause to disbelieve the claimant's assertion that a particular step would help him, the expert advice should not be taken as the last word on the subject.
The tribunal stressed that the claimant had never asked for an advantage, only for adjustments to minimise the disadvantage which was an integral result of the disability.
The tribunal anticipated the employer's representative might argue that the tribunal's interpretation of the SLT's report was formulated by the tribunal rather than actually coming from the claimant's mouth. The tribunal disagreed, saying it was implicit in the claimant's statement, but added that in judging the case the tribunal took into account what the SLT Ms McM said that the claimant, as they frequently saw in the hearing, appeared reluctant to embark upon what for him was orally demanding. To the tribunal it was patently obvious what he wanted to say.
The tribunal awarded compensation for injury to feelings in the 'middle' band of the Vento case, plus aggravated damages on the basis of high handed conduct.
Every time the claimant left an interview knowing he had not given of his best, his self esteem was crushed, leading to a vicious circle where he would go into the next interview fearing the same would happen. Also the employer approached the therapist Ms McM's report from a perspective of dictating how little they had to do to avoid a discrimination claim, whereas any reasonable employer (said the tribunal) would approach the duty by asking "How much can we do to alleviate the claimant's problems?" Further, the employer had constantly returned to the theme that the stammer was much of a problem.
As well as awarding compensation, the tribunal made recommendations. It subsequently revoked these recommendations in a review decision, on technical grounds. A tribunal may only recommend action to be taken 'within a specified period', and the recommendations did not specify a period. However, the tribunal clearly did not intend to change to change its views. Indeed in its review decision it commented that the future relationship between the parties could be ameliorated quite simply by the employer adopting an approach to the employee's requests for adjustments along the lines of the recommendations which the Tribunal had deleted. The recommendations in the original decision, but subsequently revoked, were that:
It is important that the decision has been reversed by the EAT on appeal, mainly on the basis of the evidence in the particular case.
My view though for what it is worth is that on the basis of the facts found by the Employment Tribunal - and quite possibly even in the light of the EAT's evidential findings on appeal - this is in many ways an excellent decision. The tribunal shows a good appreciation of some of the difficulties faced by people who stammer. It is particularly welcome that the tribunal acknowledges how a person may be disabled by covert symptoms of the stammer, even where he sounds fairly fluent to the listener.
It is also good to see the tribunal recognising that a person's level of stammering can be very different in different situations. The tribunal stresses the importance of looking at how the person's oral skills are likely to be in the actual job situation, and of realising that for a person who stammers the interview may be no guide to this. Another case in which the same point was recognised was this Ohio case about a firefighter; the successful claimant in that case could communicate when fighting a fire, but stammered severely in the interview. A key criticism of the EAT decision is that it failed to appreciate this point.
Other tribunal cases in which written responses to interview questions were or should have been allowed are Y v Calderdale Council (2003) and Y v Bradford Council (2006).
Examples of reasonable adjustments
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