HIS HONOUR JUDGE RICHARDSON
1.
This is an appeal by Mr Sadik Noor (“the
Claimant”) against a judgment of the Employment Tribunal sitting in Reading
(Employment Judge Hill sitting alone) dated 24 June 2010. He had brought a claim of disability discrimination against the Foreign and Commonwealth
Office (“the Respondent”). By her judgment the Employment Judge struck out
this claim as having no reasonable prospect of success.
The background facts
2.
The Claimant is a British citizen of
Somali ethnic origin. His CV records that he worked for a year for the United
Nations in Somalia in 1993-1994; came to this country in 1995 as a refugee;
obtained a law degree at university; and began to work for the immigration
service in 2003, becoming an immigration officer in 2005. His CV also
discloses that he has disabilities – dyslexia and dyspraxia. There is a report
confirming that he has severe dyslexia. He is capable of performing his work
as an immigration officer with adjustments.
3.
In 2009 the Respondent advertised a post
which was of great interest to him – the post of Somalia Multilateral Desk
Officer. He saw an external advertisement. The external advertisement
identified the key competencies as delivering results, managing external
relationships, problem solving and judgment, communicating and influencing.
4.
The Claimant completed an application
form, providing evidence for these four competencies. He disclosed the
disabilities he had. Adjustments were made for him. Arrangements were made
that the interview should not be at the beginning of the day, that he should be
allowed extra time at his interview (it was extended by 50%), that the
interview panel would repeat or clarify questions on request and that he would
be permitted to write down questions.
5.
It seems that there was a mistake in the
external advertisement. One of the competencies should have been strategic
awareness rather than problem solving and judgment. The Respondent’s internal
advertisement had apparently been correct.
6.
On 6 July 2009, four days before the interview, the Respondent emailed the Claimant to confirm the time of his interview.
The email stated the correct competencies; but the Respondent assumed the email
was mistaken and that the job advertisement was correct. He had, after all,
been selected for interview on the basis of an application form which answered
the four competencies in the advertisement and did not mention strategic
awareness.
7.
However, part-way through the interview
the Claimant was asked about strategic awareness. He was surprised but did his
best to answer. Later in the interview he raised the matter. Afterwards he
wrote a polite letter of complaint. He said that he was placed at a
disadvantage because of what happened. He asked whether he could be
re-interviewed. By this time he appreciated that the mistake had been in the
advertisement. He said it would be “unfair and unjust to be denied this
fantastic opportunity because of that mistake”.
8.
The Respondent refused his request. He
was told that, irrespective of the answers he gave on the question of strategic
awareness, the marking at the interview was such that he would not have been
appointed. He was shown the panel’s comments and marks on him, which tended to
support what the Respondent said.
The Tribunal proceedings
9.
In his claim form the Claimant set out
the facts on which he relied and claimed disability discrimination. He did
not assert any particular reasonable adjustment which should have been made.
He said:
“It is my case that I was discriminated against because of my
disability.... I have described above how the Foreign and Commonwealth Office’s
arrangements put me at a substantial disadvantage. That substantial
disadvantage led to a detriment when I was not offered the position applied.
The treatment I received was unfair and has affected my confidence and self
esteem”
10.
In its response the Respondent put the
question of disability in issue, denied that any further reasonable adjustment
was required and denied that the “alleged adjustments” would have made any
material difference to the outcome of the Claimant’s application. Moreover the
Respondent applied to strike out the Claimant’s claim.
11.
By the hearing of the striking out
application the Respondent had provided all the marking sheets for all the
candidates. These sheets appear to indicate that there were very strong
candidates for appointment with scores significantly higher than the Claimant’s
score. Indeed they appear to indicate that even if the Claimant was given a
maximum score for strategic awareness and for the other competency on which he
was asked questions after strategic awareness he would still have been third
equal in the ranking.
12.
In its submissions the Respondent
highlighted the Claimant’s contention that he ought reasonably to have been
offered a further interview and said that (1) he should in any event have
realised that the correct competency was strategic awareness, and (2) this
reasonable adjustment would not in any event have made a difference. The
Claimant’s submissions certainly included this contention, but were not
restricted to it. The Claimant complained about the introduction of the unknown
competency during interview causing him substantial disadvantage. It was said
there was no duty on him to identify the reasonable adjustment required.
The Tribunal’s reasoning
13.
The Employment Judge, after setting out
the background facts and the contentions of the parties, said:
“14. It is extremely rare that a claim of disability
discrimination would be struck out as having no reasonable prospect of
success. The only issue in this case was the failure to make reasonable
adjustments. In order for the Claimant to succeed he must show a) that he is
disabled and b) that the provision, criterion or practice imposed by the
Respondents has placed him at a substantial disadvantage.
15. I am satisfied that the Respondents will be able to
demonstrate that for the interview process adjustments were made to enable him
to perform his role. That does not appear to be the Claimant’s concern. His
concern is the late change of the competencies.
16. The late change of the competencies clearly places the
Claimant at a disadvantage compared to a person who is not disabled. What is
the duty of the Respondents in this regard? It clearly could be an argument
that the Respondents have in fact notified the Claimant giving him four days
notice of what will be the subject matter of the interviews and the Claimant
did not challenge the matter at the time and nor did he pick up that he needed
to prepare in a different way.
17. Would it make any difference if the Claimant were the
subject of a re-interview? In order for an adjustment to be reasonable,
Section 18B(1)(a) says that it must show that taking that step would prevent
the disadvantage.
18. If the Respondents were to have re-interviewed the Claimant
it would make no difference. He clearly scored on a number of competencies
below the relevant line. To re-interview him on one aspect would be a matter
of principle only, it would not in fact achieve the end of removing a
disadvantage such that he would obtain the job, it would merely give him the
opportunity but then be marked as a fail again.
19. It cannot be said in those circumstances, therefore, that
this would be a reasonable adjustment that the Respondents had failed to
take. I consider that no reasonable Tribunal could reach the conclusion that
the Claimant had demonstrated that the Respondents were under a duty to make
that adjustment or that it was a reasonable adjustment. And in those
circumstances I strike out the claim as having no reasonable prospect of
success.”
Submissions
on appeal
14.
On behalf of the Claimant Mr Kamara
submits that the Employment Judge was wrong to strike out the claim. A full
investigation of the facts was required. In particular the Employment Judge
was wrong to say or assume that everything required by way of reasonable
adjustment was undertaken before the interview. If something occurred – such
as a mistake or the discovery of a mistake – which required an additional
adjustment to be made the Respondent should have made a further adjustment: Project
Management v Latif Institute [2007] IRLR 579. The duty to make
reasonable adjustments was on the employer: see Cosgrove v Caesar &
Howie [2001] IRLR 653 and (since substantial disadvantage was proved)
the burden shifted to the employer. No evidence was heard from the Respondent
as to whether any other form of reasonable adjustment was considered.
15.
Further Mr Kamara submits that the
question was not whether making the reasonable adjustment would have enabled
the Claimant to get the job, as (he submits) the Employment Judge apparently
thought. There will be many adjustments which it is reasonable for an employer
to take which will not necessarily mean that the disabled person will be
successful, or indeed will not even remove entirely the disadvantage which the
disabled person is encountering. But that does not, of itself, absolve the
employer from the duty to take the steps.
16.
On behalf of the Respondent Mr Kellar
submits that the Employment Judge reached the correct conclusion for the
correct reasons. It was indeed demonstrated by the panel’s markings that the
Claimant would not have been appointed to the job irrespective of his
performance in the interview after he was taken by surprise by the introduction
of questions on strategic awareness. He further submitted that apart from
re-interview no other potential adjustment was obvious to the Tribunal. This
being so, the guidance in Project Management v Latif was
apposite.
17.
We asked Mr Kellar whether the Employment
Judge ought to have considered whether any reasonable adjustment could have been
made before or at the interview. He submitted that, having regard to Project
Management v Latif, the Employment Judge was not bound to consider any
such adjustment, and in any event he submitted that no adjustment could alter
the fact that the Claimant would not have been successful in obtaining the
post. This, he submitted, was the Claimant’s concern as set out in the claim
form.
The legislative provisions
18.
The duty to make reasonable adjustments
arose, at the time in question, from section 4A(1) of the Disability
Discrimination Act 1995, which provided:
“(1) Where –
(a) a provision, criterion or
practice applied by or on behalf of an employer, or
(b) any physical feature of premises
occupied by the employer,
places the disabled person concerned at a substantial
disadvantage in comparison with persons who are not disabled, it is the duty of
the employer to take such steps as it is reasonable, in all the circumstances
of the case, for him to have to take in order to prevent the provision,
criterion or practice, or feature, having that effect.”
19.
This duty arose in respect of recruitment
processes: see section 4A(2). Breach of the duty amounted to discrimination on
the grounds of disability: see section 3A(2).
20.
Section 18B(1) provided as follows:
“(1) In determining whether it is reasonable for a person to
have to take a particular step in order to comply with a duty to make
reasonable adjustments, regard shall be had, in particular, to –
(a) the extent to which taking the
step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is
practicable for him to take the step;
(c) the financial and other costs
which would be incurred by him in taking the step and the extent to which
taking it would disrupt any of his activities;
(d) the extent of his financial and
other resources;
(e) the availability to him of
financial or other assistance with respect to taking the step;
(f) the nature of his activities and
the size of his undertaking;
(g) where the step would be taken in
relation to a private household, the extent to which taking it would –
(i) disrupt that
household, or
(ii) disturb any
person residing there.”
21.
As to the burden of proof, section
17A(1C) provided:
“Where, on the hearing of a complaint under subsection (1), the
complainant proves facts from which the tribunal could, apart from this
subsection, conclude in the absence of an adequate explanation that the
respondent has acted in a way which is unlawful under this Part, the tribunal
shall uphold the complaint unless the respondent proves that he did not so
act.”
Our conclusions
22.
The Employment Judge proceeded on the
basis that what she described as the “late change in competencies” clearly
placed the Claimant at a disadvantage compared to a person who is not disabled.
As we understand it, she was in error to suppose that there was a late change
in competencies. The true position is that the competencies always included
strategic awareness rather than problem solving and judgment. But she was
plainly right to proceed on the basis that the Claimant was placed at a
substantial disadvantage compared to a person who is not disabled when he was
required to answer questions in interview on a competency which was not
contained in the advertisement for the job. Any candidate would be
disadvantaged if they had not prepared to answer questions on a particular
competency; but a person with severe dyslexia, who required to prepare for an
interview in a particular way, would be at a substantial disadvantage compared
to a person who was not disabled.
23.
The question for the Employment Judge was
therefore whether the Claimant had an arguable case that the Respondent ought
to have made a reasonable adjustment.
24.
To what extent was the burden on the
Claimant to put forward a reasonable adjustment? There is, as Mr Kellar
submitted, helpful guidance in the Disability Rights Commission’s code of
practice at paragraph 4.43 and in Project Management v Latif at
paragraphs 53-55 and 57.
25.
Paragraph 4.43 provides:
“To prove an allegation that there has been a failure to comply
with the duty to make reasonable adjustments, an employee must prove facts from
which it could be inferred in the absence of an adequate explanation that such
a duty had arisen, and that it had been breached. If the employee does this
the claim will succeed unless the employer can show that it did not fail to
comply with its duty in this regard.”
26.
In Project Management v Latif
the Appeal Tribunal (Elias P presiding) said:
“53 ....... It seems to us that by the time the case is heard
before a tribunal, there must be some indication as to what adjustments it is
alleged should have been made. It would be an impossible burden to place on a
respondent to prove a negative; that is what would be required if a respondent had
to show that there is no adjustment that could reasonably be made. Mr Epstein
is right to say that the respondent is in the best position to say whether any
apparently reasonable amendment is in fact reasonable given his own particular
circumstances. That is why the burden is reversed once a potentially
reasonable amendment has been identified.
54 In our opinion the paragraph in the Code is correct. The
key point identified therein is that the claimant must not only establish that
the duty has arisen, but that there are facts from which it could reasonably be
inferred, absent an explanation, that it has been breached. Demonstrating that
there is an arrangement causing a substantial disadvantage engages the duty,
but it provides no basis on which it could properly be inferred that there is a
breach of that duty. There must be evidence of some apparently reasonable
adjustment which could be made.
55 We do not suggest that in every case the claimant would have
had to provide the detailed adjustment that would need to be made before the
burden would shift. However, we do think that it would be necessary for the
respondent to understand the broad nature of the adjustment proposed and to be
given sufficient detail to enable him to engage with the question of whether it
could reasonably be achieved or not......
57 We accept, however, that the proposed adjustment might well
not be identified until after the alleged failure to implement it, and in
exceptional cases, as here, not even until the tribunal hearing. Indeed, in
certain circumstances we think it would be appropriate for the matter to be
raised by the tribunal itself, particularly if the employee is not
represented. To take a simple example, where a Code provides an example of an
adjustment which on the face of it appears appropriate, that is something the
tribunal should take into account. We think that it would be perfectly proper
for a tribunal to expect an employer to show why it would not have been
reasonable to make that adjustment in the particular case, although of course
the employer must have a proper opportunity of dealing with the matter.”
27.
An Employment Judge considering whether
to strike out a claim where the disabled person establishes that an arrangement
has caused substantial disadvantage ought to keep this guidance firmly in
mind. In such circumstances the focus will, of course, be on any specific
reasonable adjustment which the employee has put forward; but an Employment
Judge should carefully consider whether there is any other potential reasonable
adjustment and should strike the claim out only if it is plain and obvious that
there is none.
28.
In this case we consider that the
Employment Judge fell into error by concentrating on the proposal for
re-interview. She ought to have considered also the question whether any
adjustment could have been made prior to, or at, the interview to prevent the
disadvantage.
29.
If she had done so, we think there is an
adjustment which plainly ought to have been considered. It is, we think, certainly
arguable that prior to the interview the Respondent ought to have read the
Claimant’s application form; seen that his form did not address one of the key
competencies; appreciated the particular difficulty this would cause at
interview; alerted him to this fact; and given him the opportunity to complete,
prior to the interview, an application form which dealt with the key
competencies. In this way he would have been prepared for the interview in the
same way as the other candidates.
30.
It is also, we think, arguable that at
the interview, when the Respondent appreciated that the Claimant had not been
prepared to deal with a competency, adjustments might have been made before the
panel reached a final decision. The Claimant might have been re-interviewed
before a decision was taken; or some allowance made in the marking.
31.
We should certainly not be taken as
saying that the claim will succeed on any of these bases; it might or might
not. But we do not think the claim should have been struck out without consideration
of them.
32.
The Employment Judge’s reasoning was, we
think, erroneous in two other respects.
33.
Firstly, she said that in order for an
adjustment to be reasonable, section 18B(1)(a) says that it must show that
taking that step would prevent the disadvantage. Section 18B(1)(a) does not
say this. It is a statutory direction to take into account the extent to which
the step under consideration would prevent the effect in relation to which the
duty is imposed. Although the purpose of a reasonable adjustment is to
prevent a disabled person from being at a substantial disadvantage, it is
certainly not the law that an adjustment will only be reasonable if it is
completely effective. See, for example, HM Prison Services v Beart
[2002] EAT/650/01 at para 29.
34.
Secondly, she departed from the framework
of the statute when she concluded that the “end of removing the disadvantage”
was “such that he would obtain the job”. The true analysis of the position is
rather different.
35.
The purpose of the reasonable adjustment
is to prevent whatever provision, criterion or practice from placing the
disabled person at a substantial disadvantage: this follows from the wording of
section 4A.
36.
If the substantial disadvantage arises
from arrangements for interview (see section 4(1)(a) of the 1995 Act) and
relates to the ability of the disabled person (compared to persons who are not
disabled) to perform in interview for a job, then the purpose of the reasonable
adjustment is to remove that disadvantage – in other words, to eliminate the
practical difficulty and embarrassment which the PCP has caused and create a
level playing field for the disabled person in interview. If a reasonable
adjustment should have been made for this purpose it is not fatal to the
disabled person’s case that he or she would still not have obtained the job.
37.
Let us suppose, for example, that it was
reasonable to make an adjustment prior to the interview so that the Claimant
was prepared to deal at interview with the correct competences. The Claimant
would then have been spared the experience of undertaking the second half of
the interview in conditions where he was at a substantial disadvantage to
persons who were not disabled. It would not have been fatal to his case that
he would not have obtained the job, although that would be relevant to
remedies, including the amount of any compensation.
38.
We think we have said sufficient to make
it clear that this appeal must be allowed. We do not think a re-hearing of the
striking out application is required. In our judgment, for the reasons we have
given, the matter should proceed to a case management discussion and a full
hearing.
39.
We should finally make it clear that we
are not expressing any view as to whether ultimately the proceedings should
succeed and if so on what basis. All questions of fact will be for the
Employment Tribunal to determine.
