Court of Appeal: BT loses appeal against finding that it was liable for disability discrimination



Court of Appeal
Court of Appeal

BT has lost an appeal against the finding that it was liable for disability discrimination for failing to make reasonable adjustments in its recruitment process for a man with Asperger’s Syndrome.

Finding that there was no error in the reasoning or in the fact finding of the Industrial Tribunal’s decision, the Court of Appeal dismissed the appeal and upheld the £18,000 award.

Background

On 13 March 2017, Kevin Owen Meier applied for a job with British Telecommunications plc under BT’s Graduate Recruitment Scheme. Mr Meier, who has a 2.1 degree in computer science, has Asperger’s Syndrome, dyslexia, and dyspraxia.

In assisting her son with the application, Mr Meier’s mother stated that Mr Meier was a disabled person and was seeking to avail of the BT Disability Scheme; however, the recruitment team was not made aware of the contents of the monitoring information about Mr Meier’s disability. BT is a member of the Disability Confident Scheme, and under the Guarantee Interview Scheme, BT guaranteed to interview anyone with a disability whose application met the minimum criteria for the position.

Through the Graduate Recruitment Scheme, applicants have to complete a number of stages including an online application, a Situational Strength Test (SST), a Skype interview, and attendance at an assessment centre and an interview. The Skype interview tests the same competences as the SST, and therefore this stage could be modified or bypassed for applicants who have declared a disability.

While the SST was not stated to be a qualifying criterion in itself, nor part of the minimum criteria for the position, Mr Meier was informed on 15 March that he had to complete the SST. Mr Meier’s score on the SST was 29 out of a potential 180, and the threshold to pass to the next stage was 73. As such, on 19 March, he was informed that BT would not be taking his application forward. Mr Meier’s mother complained, criticising the use of the SST which she said was problematic for people with ASD and pressed for BT’s policies relating to reasonable adjustments to be applied to the design of the SST for disabled candidates and for her son’s particular disability.

Thereafter, Mr Meier’s mother drew BT’s attention to Government Legal Services v Brooks [2017] UKEAT, in which it was held that an applicant who had ASD had suffered from indirect discrimination as the employer had failed in its duty to make reasonable adjustments and had treated her unfavourably because of her disability.

Industrial Tribunal

In the Industrial Tribunal, Mr Meier claimed that he suffered discrimination on the ground of his disability and that BT had failed to make reasonable adjustments for him as a disabled person contrary to the Disability Discrimination Act 1995 (as amended).

The Tribunal concluded that BT knew from 14 March 2017 that Mr Meier was a disabled person suffering from ASD and dyslexia who was seeking to avail of BT’s Disability Confident Scheme. It said the Graduate Recruitment Team knew Mr Meier was disabled but did not pro-actively offer or make reasonable adjustments.

The Tribunal further held that BT did not take any steps to consider whether any information in the monitoring form was relevant to its commitment to plan for and make reasonable adjustments to the assessment and interview process and said that BT knew or ought reasonably to have known that Mr Meier was disabled and that his disability was placing him at a substantial disadvantage.

Finding BT liable for disability discrimination by reason of its failure to make reasonable adjustments, the Tribunal awarded Mr Meier a total of £18,438.63 (including £4,538.63 for loss of earnings, and £12,500 for injury to feelings together with £1,400 interest).

Court of Appeal

Counsel for BT submitted that BT did not have to requisite knowledge to trigger a reasonable adjustment duty in April and did not know that Mr Meier was likely placed at a substantial disadvantage.

Delivering the judgment of the Court, Sir Paul Girvan said it was satisfied that the Tribunal was fully entitled to conclude on the evidence that BT knew of his disability and failed to take any steps to consider whether information on the monitoring form was relevant to their commitment to plan for and make reasonable adjustments.

The Court said that the duty to make reasonable adjustments lay on the employer and applied at all stages of the process including before proceeding to the interview.

BT claimed that when its attention was drawn to the Government Legal Services v Brooks decision it sought to engage with Mr Meier with a view to making reasonable adjustments, however, the Court said that a fair reading of the email communication showed that BT was still failing to face up to the commitment to allow Mr Meier to proceed to an interview stage notwithstanding its guaranteed interview commitment in the Guaranteed Interview Scheme and it expected Mr Meier to propose a reasonable adjustment without itself recognising that the employer had a legal duty to consider what reasonable adjustments would be appropriate.

Finding no error in the reasoning or in the fact finding of the Tribunal, the Court dismissed the appeal.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2019



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