In the case of Glasson v Insolvency Service, the claimant had been employed by the Insolvency Service since 2005. He applied for a promotion in August 2020, seeking one of two available vacancies.
Due to the COVID-19 pandemic, the interviews were conducted remotely via video call. The claimant, who has a stammer, anticipated that he might need more time to answer questions and explained this on the adjustment form as part of his application.
The claimant performed well in the interview but missed out on the promotion because he scored one point less than the second most successful candidate in the process. He brought claims alleging a failure to make reasonable adjustments and discrimination arising from disability. The claimant argued that the disadvantage arose not because he needed more time to answer questions, but because his stammer caused him to go into 'restrictive mode', which meant he gave shorter and therefore lower scoring answers. He had not raised this particular effect of his disability before or during the process.
The Tribunal rejected the claimant's claims, and the claimant appealed to the EAT.
The EAT dismissed the appeal. In respect of the alleged failure to make reasonable adjustments, the way the interview was conducted did cause the claimant some disadvantage compared with other candidates who did not have his disability. However, the Insolvency Service did not have actual or constructive knowledge of the disadvantage, namely that the claimant would go into 'restrictive mode' and that this would impact on his performance. This was because the claimant had not explained this particular impact on him, and also had not sought any adjustment relating to this disadvantage at the time. Whilst the claimant was affected by going into restrictive mode at the interview, his overall performance remained sufficiently strong so as not to cause the panel to consider whether he required further adjustments as a result of his disability.
In respect of the claim of discrimination arising from disability, the Tribunal had been correct in its assessment of whether the recruitment process was appropriate. Good oral communication skills were required for the job and as the recruitment exercise took place during the pandemic, the video conferencing was justified.
This EAT decision reinforces the importance of an employer's actual or constructive knowledge in disability discrimination claims. The Tribunal and the EAT placed significant weight on the fact that the Insolvency Service was unaware of the specific impact of G's stammer during the interview. Given his overall strong performance, it was not reasonable to expect the interview panel to have known the claimant was going into restrictive mode during the interview.