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Employment: Recruitment and promotion

This page gives an overview of how the Equality Act can apply to recruitment and promotion.

Summary

This page is an introduction to how the Equality Act can apply to recruitment and promotion. It deals in turn with two areas which are likely to be particularly important (though they may overlap):

  1. Making any reasonable adjustments to the interview, assessment or other arrangements so as to put the person who stammers on a level playing field with other job applicants, see below Reasonable adjustments; and
  2. Whether the reason for turning someone down for a job is lawful, if it relates to the disability, see below Reason for being turned down for a job.

Other individual points (on separate pages):

Reasonable adjustments

Job interview and other recruitment arrangements are often designed for people without disabilities. A person who stammers may be the best candidate for the job, but may not be able to show this in a standard job interview. Extra time for an interview is only one possible example of an adjustment.

If you want adjustments, it is a good idea to tell the employer in advance: see Recruitment: Should I tell the employer I stammer?

What adjustments might be required?

Some examples of adjustments which might be needed on recruitment (if reasonable):

More examples of reasonable adjustments...

Some cases on reasonable adjustments for stammering

Y v Calderdale Council (2003), Employment Tribunal
An employment tribunal found that an employer had not made sufficient reasonable adjustments to the recruitment process for a person who stammers. The employer had allowed more time for the interview, but the amount of information the person was able to convey compared with other candidates was still much reduced. The tribunal suggested other adjustments which the employer could have considered.

Y v Bradford Council (2006), Employment Tribunal
An employer adjusted the recruitment process for a person with a severe stammer by allowing written responses to pre-set interview questions, and a written equivalent of a presentation exercise. Even so, the tribunal held there was a breach of the reasonable adjustment duty. The claimant had not been given enough time for the written presentation. Also he had not been told how long he had to write the interview answers.

Shirlow v Translink (2008), Employment Tribunal
An existing employee applied for a job as a signalman. He failed a 'competence-based interview' as he did not provide enough examples and evidence of his competencies. The tribunal held that his stammer was a disability. However, it held that there was no breach of the duty to make reasonable adjustments. A factor was lack of knowledge of the stammer, including lack of advance notice to make an adjustment.

Wakefield v HM Land Registry (2008), Employment Appeal Tribunal (EAT)
On the evidence, the EAT overturned an employment tribunal decision that the claimant should have been allowed to give written answers to interview questions.

Reason for being turned down for a job

Main legal issues

Where the reason for turning someone down may be something arising from their disability, there will often be two - or perhaps three - main issues:

1. What was the reason for turning the person down?

The reason for turning the person down might not be disputed. The employer may acknowledge that the person was turned down because of concerns about how the person would communicate with their stammer.

If the reason is disputed, ie if the employer does not acknowledge that its decision was because of something arising from the stammer, the burden to show the reason was discriminatory is normally on the claimant to start with. However, the burden of proof can switch to the employer if a certain amount of evidence is given: see Proving discrimination: Burden of proof. Asking questions and (after a claim has started) disclosure of documents may also help in establishing the employer's real reason.

Proving a discriminatory reason can be easier for a claimant if he disclosed the stammer in response to a prohibited enquiry about disability, eg a general question in a job application form asking whether the applicant has a disability (other than for monitoring purposes). Where an enquiry such as this is prohibited by s.60 EqA, it is normally for the employer to prove there was no direct discrimination. See Pre-employment enquiries.

2. Can the employer show objective justification?

Assuming the reason for turning down the applicant is something arising from their disability, the employer will normally have a defence if it shows objective justification. Here the burden is on the employer to show that turning the person down was a proportionate means of achieving a legitimate aim.

Assuming the employer knows of the stammer, rejecting someone because of communication abilities (or something else) related to the stammer should be unlawful unless the employer shows that the rejection was a proportionate means of achieving a legitimate aim (s.15 Equality Act). If a claim is brought, a tribunal would conduct a balancing exercise, considering such things as the employer's aim, the detriment to the claimant, and are there other ways the aim could have been achieved without turning the person down, including possible reasonable adjustments in the job (In the job: Reasonable adjustments).

Example: Turned down for accountancy job

A accountancy job involves a significant amount of work on the telephone, including with the firm's clients, and also in meetings. The firm turns her down a woman with a stammer because it is concerned that she will not be able to handle the significant oral demands of the job. If this is not direct discrimination, it is likely to be 'discrimination arising from disability' unless the firm shows objective justification, ie. that turning her down was a propotionate means of achieving a legitimate aim.
More detail on this example: Example: Turned down for accountancy job.

The employer has no objective justification defence if there is 'direct discrimination' (below). Direct discrimination may apply particularly where a person is stereoyped because of their disability.

3. Whether the stammer is a disability

A preliminary issue which may arise in nearly any discrimination case is whether the particular stammer is a 'disability' as defined in the Equality Act. Very often it will be a disability.

Types of discrimination claim

Discrimination arising from disability

The issues set out above mostly assume a claim for discrimination arising from disability under s.15 Equality Act. This is broad, and is likely to be the most commonly used type of claim.

As well as the objective justification defence, the employer has a defence to this type of claim if it shows that it did not know, and could not reasonably have been expected to know, that the person had the disability.

Direct discrimination

Direct discrimination under s.13 Equality Act is a different type of claim. It is narrower but has no objective justification defence. It is broadly where someone is treated less favourably because of the disability.

Direct discrimination may apply particularly where an employer stereotypes a disabled person, for example if the employer simply assumes that a person who stammers will not be able to do a particular job, without looking at the individual's abilities. See Direct discrimination: Stereotypes and assumptions.

On the other hand if the less favourable treatment is because of the person's abilities (or lack of them) which are a consequence of the disability, that is 'discrimination arising from disability' and the employer has a defence if it shows objective justification.

In practice, a claimant might well argue that

  1. there was 'direct discrimination' (for which there is no justification defence), but
  2. if not, there was unjustified 'discrimination arising from disability'. (Other types of claim may also be relevant.)

Examples: two types of discrimination claim

1. An applicant for a customer service job has a stammer which is a 'disability' within the Equality Act. The employer turns him down because, due to the stammer, he will sometimes take longer to serve customers. This is likely to be 'discrimination arising from disability'. The question will be whether the employer can show the objective justification defence applies. The reason for turning the person down is their ability to do something rather than the stammer itself.

2. The employer sees from a job application that the applicant has a stammer. He does not look into the applicant's abilities but simply discards the application because of the stammer. This is likely to be direct discrimination, so that the objective justification defence is not relevant.

More: 'Direct discrimination' vs 'discrimination arising from disability'.

Other types of claim

Other types of claim may often also be relevant, eg reasonable adjustments, harassment, and indirect discrimination. See Discrimination.

An employer assesses presentation skills of job applicants, and uses the results in choosing the successful candidate. However, these skills are not actually important for the job. This could be:

An employer comments to a job applicant who stammers that all the people at their company can speak properly and he is unlikely to fit in there. This is likely to be harassment, on the basis that it creates a degrading or humiliating environment. Other types of claim may also apply.

Other points on recruitment and promotion

Should I tell the employer I stammer?

Sometimes (but by no means always) claims under the Equality Act may be reduced - or in some cases may not apply - if the employer has not been told about the stammer. See Recruitment: Should I tell the employer I stammer?

Can a potential employer ask about my stammer?

The Equality Act 2010 introduced restrictions on how far an employer can ask about an applicant's health or disability before a job offer. Some enquiries are still allowed, such as asking about adjustments to the recruitness process or about ability to perform instrinsic job functions (after reasonable adjustments).

This restriction is more useful for mental health disabilties than it is for stammering, which will often be apparent at the interview in any event. However it may help a person who stammers to be selected for interview, without the job application being discarded because the person reveals they have a disability.

More: Pre-employment enquiries.

How can the 'Disability Confident' scheme help?

Employers who have signed up to level 2 of the Disability Confident scheme guarantee disabled people an interview if they meet the minimum job criteria. There are also other promises made by employers within the scheme.

Disability Confident replaces the 'Two ticks' or disability symbol scheme which also offered a guaranteed interview.

See 'Disability confident' and guaranteed interviews.

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Last updated 31st October 2018