Reasonable adjustments - the need to know

by Allan Tyrer

Shirlow v Translink is a Northern Ireland case on stammering decided in 2007-2008, which I came across over Christmas. An existing employee applied for a job as a signal person. However, he failed a 'competence-based interview' as he did not provide enough examples and evidence of his competencies. He claimed the employer should have made reasonable adjustments for his stammer under the Disability Discrimination Act.

The Tribunal held that he did have a disability. He used avoidance strategies such as asking other people to do things for him, and it is good to see the Tribunal took that into account as well as overt dysfluency.

However the Tribunal said there was no breach of the duty to make reasonable adjustments, partly because the employer did not know and could not reasonably be expected to know of his disability. The claimant had indicated on forms that he did not consider he had a disability, and he had not taken up an invitation to indicate he wanted adjustments. His line manager knew he stammered, but Human Resources and the assessment centre did not. (A future case might well hold that if the line manager knew the company must legally be taken to know, but this Tribunal reached a different conclusion.)

In any event, said the Tribunal, it would not be 'reasonable' to make the adjustments, partly due to the lack of prior notice. For example, the claimant would have preferred two interviewers; he found a single interviewer unsettling because the lack of eye-to-eye contact affected his stammer. (Presumably the single interviewer was taking notes and so could not maintain eye contact.) The Tribunal said that, leaving aside cost issues, given the employer did not know in advance of the claimant's difficulty it was not practicable to find a second interviewer.

Each case depends on the facts. The approach in this case can be contrasted with a decision against Calderdale Council in 2003. The claimant there had a severe stammer which was very evident at the interview. The Tribunal said that the employer could have adjourned the interview and - with the claimant - devised a suitable format to give him an equal opportunity to that of other candidates.

Generally, the Tribunal in Translink seems to have felt the claimant's failure to pass the interview was more down to lack of preparation by him than speech difficulties. However, the case points up that not raising the issue of the stammer and reasonable adjustments in advance can sometimes reduce one's legal rights, as well as making adjustments less likely to happen in practice.

More on my personal website: www.stammeringlaw.org.uk/cases/translink.htm

This article is only intended as a general summary and is not a substitute for appropriate professional advice in any individual case.

From the Spring 2010 issue of Speaking Out, page 19.