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Disability Discrimination: Adjustments for candidate with Asperger’s Syndrome

In the recent case of Government Legal Services v Brookes UKEAT/0302/16, the Employment Appeals Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that requiring a job applicant with Asperger’s to take a multiple-choice test as part of the recruitment process, amounted to indirect discrimination.

Background

The facts of the case were that the Government Legal Service (GLS) was recruiting lawyers in what the EAT later called “a fiendishly competitive recruitment process”. Applicants would be required to complete and pass a multiple choice ‘Situational Judgment Test’ (SJT), in order to be invited for interview.

Prior to commencing the test the Claimant, Ms Brookes, contacted the GLS and asked if adjustments could be made due to her Asperger’s – in particular, she asked if she could give her answers in a short narrative format rather than multiple choice so that she was not placed at a disadvantage.

Unfortunately, the GLS advised her that an alternative test format was not available, however did state that additional time allowances might be permitted for tests taken at a later stage following the successful completion of the entry tests.  The Claimant therefore completed the SJT in its existing format and failed, albeit she scored just 2 points under the pass mark required.

Ms Brookes brought claims of indirect disability discrimination and failure to make reasonable adjustments at the ET, arguing that the multiple-choice format of the test placed her at a disadvantage in comparison to other candidates who did not suffer from Asperger’s.  She further claimed that there could be no justification for this, and no reasonable adjustments had been made to the process.

The decisions

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Online assessments and discrimination

DWPThere is an increasing tendency for employers to use online services in order to carry out HR related functions, including assessments, job interviews and appraisals. This can be daunting even for the most confident and well-equipped candidates and employees. I have recently witnessed such a process in action, with an international employer using an American Company to carry out initial interviews on a system similar to Skype but with time limits for replies in the style of a TV quiz show.

While this may be something that many candidates and employees will just have to get on with, it has the capacity to present fairly obvious problems for those who are disabled or have other protected characteristics within the meaning of the relevant sections of the Equality Act 2010. As an aside, it also seems to provide almost the polar opposite of providing fair opportunities by anonymising applications for employment.

The issue of discrimination and online assessments was to the fore in the recent Employment Appeal Tribunal case of Muzi-Mabaso v Commissioners for HMRC. Mr Muzi-Mabaso joined HMRC as a Grade AA employee in September 2004. As was known to the employer he suffered from depression and was a disabled person for the purposes of the Equality Act 2010, thereby obliging the employer to make reasonable adjustments where necessary to take into account the effects of the disability.

In 2010 Mr Muzi-Mabaso was temporarily promoted to Grade Band O and undertook training over two years with a view to possible promotion to Grade HO. He did not pass the required module and therefore reverted to Grade AA with effect from 28 November 2011. However there was little available work for Grade AA employees. Mr Muzi-Mabaso was on sick leave from 14 November 2011 to 22 April 2012, having been certified as suffering from stress and depression. Efforts were made to find a post for him but he was told that promotion opportunities could arise only as a result of open competition. Shortly before he returned from sickness absence he was place in a redeployment pool. After six months in the pool, if a job had not been found, an employee would be deemed surplus, thereby opening the possibility of redundancy.

In April 2012 Mr Muzi-Mabaso brought to the employer’s attention his phobia of the job application process. He said that going through the process was very stressful for him and therefore put him at a disadvantage by reason of his disability. He submitted an application for a Grade O vacancy. However, he said that he could not complete the online test as part of the process because he was too stressed due to his disabilities, specifically his frame of mind and phobias.

An offer was made for his manager to sit in with him and talk him through the questions. He was also offered a private room with a computer and extra time to complete the form. There was also a discussion about doing a paper test. However all these options were rejected by him. His application was kept open pending further medical reports. The employer took the view that excepting him from the online process was not a reasonable adjustment, not least because of the high number of applicants, many of whom needed reasonable adjustments for medical reasons.

Mr Muzi-Mabaso brought two claims before the Employment Tribunal: indirect disability discrimination on the basis that he was part of a disadvantaged group and direct disability discrimination on the basis of alleged failure to make reasonable adjustments in his case. Both claims failed and a costs order of £5000 was made in favour of HMRC.

On appeal it was held that Mr Muzi-Mabaso had not suffered any particular disadvantage by being placed in the redeployment pool. The main issue was the online test and Her Honour Judge Eady QC had trouble with the Employment Tribunal’s reasoning in concluding that Mr Muzi-Mabaso was not placed at a substantial disadvantage in this regard.

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reasonable adjustments for absent employees in the event of redundancy

JaguarlogoIn McCarthy v Jaguar Cars Ltd the Employment Appeal Tribunal considered, and upheld, an Employment Tribunal decision that where a disabled person had been selected for redundancy although the selection criterion relating to attendance amounted to a discriminatory provision, criterion or practice, the employer had made a reasonable adjustment by scoring the employee on the period before he became disabled.

Mr McCarthy was a process engineering manager who became ill with depression and went off sick in 2007. There was no dispute that his illness was a disability. He was still absent from work when a redundancy situation arose in 2009. He fell within the pool for selection, scored poorly and was made redundant. He appealed successfully and was re-scored, this time based purely on his attendance and performance prior to his illness when he was at work and performing well. The result of the re-mark was virtually the same.

The Employment Tribunal found that the re-mark was an appropriate way forward and “expunged any disadvantage” to Mr McCarthy and the Employment Appeal Tribunal upheld the decision.

It is quite plain that the Tribunal were accepting the concession made, that the application of the criterion would ordinarily lead to a substantial disadvantage to the Claimant, and they were satisfied, for the reasons we have just reproduced, why it was that the steps taken by the employer removed the relevant disadvantage. Against that background, we reject the proposition that it was necessary to deal, for example, with Mr McCarthy’s contention that there were different ways of making reasonable adjustments (for example by averaging his points). The Tribunal found that what was done was the making of reasonable adjustments and that they eliminated the disadvantage.

Overlaps between rights and procedures such as those highlighted in this case can often seem daunting for employers, so much so that I can think of some employers who have abandoned proposed dismissals for fear of procedural errors. Another good example is the difficult co-existence of protection from disability discrimination and dismissal on the ground of ill-health incapacity. In fact, as long as key principles are adhered to, employers can proceed in relative safety. For example, dismissal for incapacity will generally be fair as long as it is established (almost always supported by professional medical evidence) that the employee will be unfit to return to work for the foreseeable future.

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paying for private medical treatment – thin end of the wedge?

croft-vets2

Mrs Butcher started work for the veterinary practice Croft Vets in 1996. Over time the practice expanded and she was promoted to finance and reception manager. In the period from 2007 to 2010 the practice opened a new hospital and acquired new phone and IT systems, both of which suffered the inevitable teething troubles, all of which Mrs Butcher had to manage on top of her existing responsibilities. Unsurprisingly, she was observed sitting in her office staring out of the window in tears shortly after returning to the office, following a week off, during which she had moved house. A few days later in May 2010 she went off sick with depression, never to return.

Her employer’s initial response was to offer the choice between support to carry on with her existing workload or taking a lesser job at lower pay. After a few weeks, they asked her to see a consultant psychiatrist “to allow us to consider whether there are any steps we can take now to facilitate your return to work”.

The psychiatrist reported back on 19 August that work related stress had triggered a severe depressive episode with marked anxiety. He recommended that as well as antidepressant medication she should have six further psychiatric sessions including CBT to help her recover. He gave an indication that the cost would not exceed £750. There ensued some correspondence between employer and psychiatrist which confirmed the diagnosis, and discussed how long she might remain unwell. No steps were taken to implement the psychiatric recommendations. In November 2010 Mrs Butcher resigned. She alleged that that her employers had caused her breakdown, questioned the psychiatrist’s diagnosis, and ignored his recommendations, all of which meant that she had suffered disability discrimination. The final view of the psychiatrist, (given after her resignation) was that given specialist help, while it was difficult to predict how long she would be unwell, the average period for recovery would be a year, but that given the severity of the issues at work, there was only a 50/50 chance of her being able to return at all.

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disability adjustments for exams

The second of this month's two disability cases, Burke v The College of Law & Anor, was a decision of the Court of Appeal concerning a mature student at the College of Law who had multiple sclerosis. He was seeking to qualify as a solicitor, and over the period of the legal practice course agreed a number of adjustments with the College to mitigate the effect of his disability. As the exams approached, he made requests for further special arrangements. These, including 60% extra time to complete exam papers with opportunities to take breaks, were agreed. However, part way through the exams, Mr Burke asked for yet more adjustments, including being allowed to take the remaining exams at home in Brighton and unsupervised. The College refused this, but did offer to arrange accommodation for him near the college during the exam period.

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is "hot-desking" bad for your health?

Two cases this month looked at the impact of the application of provisions, criteria or practices ("PCPs") in the workplace and employers’ duties to make reasonable adjustments.

The first, Roberts v North West Ambulance Service, related to an ambulance dispatcher who suffered social anxiety disorder. He worked shifts, and the employer operated a "hot-desking" system in the room where he worked. After sitting at a desk in the middle of the room, Mr Roberts decided that this may exacerbate his condition. He therefore moved to a desk at the edge of the room, and asked that he should always work there. Although the employer agreed in principle, the practical steps they took did not guarantee this would always happen, and the shift patterns made if difficult to ensure that he should have the same desk all the time.

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