Equalities Act is shifting attitudes- Tom and Teri win their cases

disability discrimination

Two young people win their discrimination cases

First, OPEN PLAN RULING

In May 2019, Npower got this very wrong.

Tom Sherbourne, working as an analyst in an open plan setting, told his manager that he felt overwhelmed by noise and constant distractions, which made it hard for him to concentrate on his work. Building works going on made the situation worse and he asked for various adjustments to make working life more bearable.  The operations manager dealing with Tom refused, creating more difficulties for Tom and a lose/ lose situation where he had to take time off; Npower losing a skilled member of staff, Tom experiencing worsening mental health. 
Tom has now won his claim for indirect discrimination, the tribunal being clear that handling this situation amounted to a “continuous management failure”.  Npower simply did not understand what it is like for an autistic person to work in a noisy open plan setting, the Operations manager involved blaming the company’s lack of training and diversity policy.  
What can line managers learn from this?  Minor and inexpensive adjustments, plus understanding of what it’s like to be autistic in work, would have turned this situation into win/win and kept Npower out of the papers. 

Now, Teri

In 2017, Teri Brookes applied for a post within the Government Legal Service (GLS), the first stage of which was a multiple-choice test.  After being told she had failed the test, she filed her claim for disability discrimination on the grounds that by asking her to take the test as it stood, the GLS had indirectly discriminated against her by failing to make reasonable adjustments that took into account her disability and so had treated her unfavourably.  She argued that she should have been allowed to submit short written answers to the multiple-choice test, as its black and white nature placed her at a disadvantage. 

Whilst this format made the assessment process more efficient, this time the EAT found it also to be discriminatory, urging employers to reconsider recruitment practices. This case has become the first case of indirect disability discrimination to succeed - where a workplace rule or policy that applies to all employees leaves a disabled person at a disadvantage to do so. 

The GLS v Brookes UKEAT/0302/16/RN

CHALLENGING DISABILITY CONFIDENT EMPLOYERS AND THEIR AUTOMATED RECRUITMENT PROCESSES

Applying to the British Telecom graduate recruitment scheme, Kevin Meier, a graduate holding a strong computer science degree, was asked to sit an on-line test requiring him to answer questions based upon a scenario presented.  These tests are frequently used by large employers to assess someone’s judgment and decision-making abilities.

Knowing that BT are a Disability Confident employer and that he met the minimum entry criteria, Kevin believed he would have been guaranteed an interview without taking the test. However, BT did ask him to take the test, which both the Tribunal and the appeal court found to place someone with an ASC diagnosis at a substantial disadvantage over people without.

The Appeal court was clear that someone like Kevin who had ‘different but equal abilities’, is entitled to reasonable adjustments, as these were not ‘impractical; would not have disrupted BT’s activities and did not put a strain on BT’s resources.’

Kevin’s case raises issues for employers as to how they can live up to the intentions of their Disability Confident badge in respect of hidden as well as physical disabilities. BT did offer to adjust the test conditions but accepted they ‘could have been more proactive in agreeing reasonable adjustments earlier in the process’. The ruling also highlights the non-human element of automated recruitment processes that assess everyone as the ‘same ‘.

http://www.equalityni.org/ECNI/media/ECNI/Cases%20and%20Settlements/2019/Meier-v-BT-Judgement29July19.pdf