Employers have to make reasonable adjustments if they apply a provision, criterion or practice that puts someone with a disability at a particular disadvantage. The duty only applies if the employer knows or could reasonably be expected to know that an employee or applicant has a disability and is likely to be placed at the relevant disadvantage. In Glasson v The Insolvency Service, the UK EAT decided that although an employee with a stammer was placed at a disadvantage during an interview process, the duty to make reasonable adjustments didn’t apply because the employer didn’t know about the disadvantage.
What happened
Mr Glasson was a long-serving and high-performing employee of the Insolvency Service. He had a stammer, which was a disability under the Equality Act. In 2020 he applied for a promotion. Interviews were carried out by video conference because of pandemic related restrictions on face-to-face meetings. Before the interview he said that he might need more time to answer questions because of his stammer but he didn’t ask for any other adjustments.
Although Mr Glasson passed the interview, another candidate performed better and was offered the role. Mr Glasson claimed that the employer had failed to make reasonable adjustments for his disability. His stammer meant he had not been able to give full and focused answers to questions during the interview, which affected his scores.
The tribunal accepted that being interviewed live by video conference put Mr Glasson at a particular disadvantage because of his stammer. However, the employer wasn’t obliged to make reasonable adjustments because it didn’t know and couldn’t reasonably be expected to know about the disadvantage. Mr Glasson had participated in video conference interviews before, hadn’t raised any concerns about the process in advance and hadn’t asked for any adjustments except extra time. The tribunal also decided that the interview process was objectively justified, so a discrimination arising from a disability claim failed.
On appeal, the EAT upheld the tribunal’s decision. Mr Glasson’s performance at the interview and general performance at work were relevant. His answers to questions were reasonably competent, even if they weren’t as full as might have been expected. This meant that the extent of any disadvantage wasn't sufficient to put the interviewers on notice that the way he was answering questions was affected by his disability.
Next steps
Even though the employer was aware of Mr Glasson’s disability, it didn’t have actual or constructive knowledge that the interview process would put him at a disadvantage in the way it did. It was undoubtedly helpful for the employer that he hadn’t drawn attention to the disadvantage other than asking for extra time to answer questions.
The position might have been different if Mr Glasson had obviously been unable to answer questions adequately on the day. In that case the interviewers might have been expected to make further inquiries into whether his disability affected his ability to perform in the interview, and if so take reasonable steps to avoid the disadvantage.
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