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DDA case on appeal

Allan Tyrer | 01.03.2009

The employer has won its appeal against the decision in Wakefield v HM Land Registry, reported in Speaking Out Winter 2007 ('Levelling the playing field for promotions').

The case related to the employer's duty to make reasonable adjustments. This duty, applying both on recruitment and in the job, is a key part of the Disability Discrimination Act. The Employment Tribunal originally found, on the facts, that an applicant for promotion who stammered should have been allowed to give written responses to interview questions in place of a (fully) oral interview, by way of reasonable adjustment.

The Employment Appeal Tribunal (EAT) has overturned this decision. This was mainly because the EAT considered that some of the tribunal's findings of fact were unsupportable, in particular its view of the oral content of the post and its interpretation of a speech and language therapist's report. However, the case may be appealed further.

The employer argued the oral interview was needed to test oral skills for the job. The Employment Tribunal disagreed partly on the basis that it was not reasonable to test at an interview a person known to have a stammering problem in the context of a job interview when the aim was to ascertain how he would cope with challenges in a work context. For that, one might look at work history of specific oral skills required, and/or have a specific oral skills test tailored to the requirements of the post. The EAT did not really address this as a general principle, but did seem to think that the job interview could be a valuable tool in assessing how the person would communicate "in a more confrontational setting" in the job.

BSA's view on this is that factually an employer cannot assume that someone's speech at a job interview will reflect how they will speak in a job situation (whether or not it is more confrontational). BSA would expect that effects of stammering would normally be significantly greater in an interview. A US case about a firefighter graphically illustrates that an interview is an unreliable guide even to speech situations that may be seen as 'more difficult'. The job applicant there could communicate at a fire and had been rated 'excellent' by co-workers, but was turned down because of his stammer at the interview. The Ohio Court of Appeals said the employers "simply assumed that [his] stuttering is caused by nervousness and would get worse in a stressful fire situation... They made their assessments of his abilities on the basis of assumptions about his handicap which had no basis in fact. This type of discrimination is exactly what the handicap discrimination law was designed to eliminate."

Where relevant in future, it may help to have evidence from a speech and language therapist on this point. Finally, the EAT does not say that written responses cannot be a reasonable adjustment, even where a job requires oral skills. Each case depends on its facts and evidence.

Allan Tyrer. From the Spring 2009 issue of Speaking Out, page 6.

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