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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 an apply to recruitment and promotion. It deals in turn with two areas which are likely to be particularly important (though they may overlap):

Other individual points (on separate pages):

Reasonable adjustments

Job interview and other recruitment arrangements are often designed with a view to those without disabilities. A person who stammers may be the best person 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.

It can help to tell the employer about the stammer and any need for adjustments, preferably 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. More time was allowed for the interview, but the amount of information the person was able to convey compared to other candidates was still much reduced. The tribunal suggested other adjustments the Council 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. However, there was held to be 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 issues

Where the reason for turning someone 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 the stammer.

Assuming 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 may switch to the employer if a certain amount of evidence is given: see Proving discrimination: Burden of proof. The questions procedure 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 has a defence if it shows objective justification. Here the burden is squarely on the employer to show that turning the person down was a proportionate means of achieving a legitimate aim.

In deciding whether there is objective justification, it will be important whether any difficulties in doing the job can be addressed by making reasonable adjustments (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.

Types of discrimination claim

Discrimination arising from disability

The issues set out above mostly assume a claim for discrimination arising from disability. 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 is a different type of claim, which 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 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 relvant, eg indirect discrimination and reasonable adjustments. 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 may well 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 permitted, such as on the need to adjustments to the recruitmess process, and ability to perform instrinsic job functions (after reasonable adjustments).

This restriction is more useful for mental health disabilties than for stammering, which will often be apparent at the interview in any event. But it can help a person who stammers 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 23rd July 2013 (update for 'Disability Confident' 22nd December 2016)