In Mr S Glasson v The Insolvency Service [2024] the Employment Appeal Tribunal (EAT) dismissed an appeal against the employment tribunal’s (ET) decision that the employer had not failed to comply with the duty of reasonable adjustments and had not discriminated against Mr Glasson due to a disability which, in this case, was a stammer.

What was the background?

In 2020 Mr Glasson applied for a promotion within TIS, where there were two vacancies. The recruitment process comprised of oral interviews held via videoconferencing, due to the COVID-19 pandemic restrictions at the time.  Before his oral interview, Mr Glasson indicated that he may need more time to complete his answers due to his stammer. Mr Glasson performed well at the interview, scoring one point behind the second highest candidate, but did not receive the promotion. He then brought complaints of failure to comply with the duty to consider reasonable adjustments (section 20 Equality Act 2010) and discrimination arising from disability (section 15).

Why did Mr Glasson complain?

During the interview, Mr Glasson struggled to give full answers and entered into, as he describes, a ‘restrictive mode’, where he limited what he was saying. This meant that he gave shorter answers to some questions in order to avoid stammering. Despite scoring well in the interview, he missed out on the promotion and later argued that his ‘restrictive mode’ had a negative impact on his score. Therefore, TIS had failed to make proper adjustments to mitigate Mr Glasson entering such a mode. He complained that there was a failure to make reasonable adjustments to the videoconferencing format, which put him at a considerable disadvantage versus those that did not have the same disability during the interview.

What did the original ET decide?

TIS accepted that they knew about Mr Glasson’s stammer, which gave them actual knowledge of his disability. The more important question was whether they had constructive or actual knowledge of the disadvantage Mr Glasson suffered as a result of going into ‘restrictive mode’. The ‘restrictive mode’ effect of Mr Glasson’s stammer was not raised prior to, or during, the interview. TIS therefore argued that they did not know about the disadvantage and could not have been reasonably expected to know about it. They also argued that Mr Glasson had only asked for extra time to provide answers to which they agreed.

The ET decided that the effect of the ‘restrictive mode’ was due to Mr Glasson’s stammer, which did in fact affect his interview performance. The ET concluded that even though there was discrimination arising from the disability, the method used (videoconferencing during a pandemic and that the promotion role required oral communication) was justified as a proportionate means of achieving a legitimate aim of achieving a ‘fair and proportionate recruitment process’.

What did the EAT decide after Mr Glasson’s appeal?

Mr Glasson appealed on several grounds, one of which was that the ET had been wrong to assess TIS’ constructive knowledge in such a way. The EAT analysed TIS’ potential constructive knowledge of the disadvantage caused by the disability and found that the ET had assessed the full circumstances by having proper regard to the context and factual background of Mr Glasson’s case. The EAT deemed that the ET’s reasoning on the issue of constructive knowledge was consistent with the leading case, A Ltd v Z [2018] in which it was held the employer was not expected to ‘make every enquiry where there is little or no basis for doing so’ and that a balance is required between making enquiries and the likelihood of such enquiries affecting the dignity of the employee.

The EAT felt that for Mr Glasson’s case, it was reasonable that a balance between the need to make enquiries to Mr Glasson during the interview as to why he was not giving more complete answers and his dignity be carefully considered.

The EAT therefore dismissed the appeal as the ET had correctly found that TIS did not have actual or constructive knowledge of the disadvantage relied upon.

Why is this case important for employers?

Although this case dismissed the employee’s appeal it is still important to be aware of potential challenges arising from individuals with disabilities, even if such challenges are not specifically disclosed by the employee.

Employers should try to be as proactive as possible in considering and accommodating disabilities in their practices and procedures. This includes seeking understanding as to how disabilities impact a person’s job and address any disadvantages as reasonably as possible.  In this case, Mr Glasson failed because he had not raised the fact about his ‘restrictive mode’ and therefore TIS managed to successfully argue they did not have actual or constructive knowledge of it and, as a result, the disadvantage Mr Glasson suffered at the oral interview.

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