29 July 2019
Summary of judgment - British Telecommunications plc v Meier - 29.7.19
Court Dismisses Appeal By British Telecomunications In Disbility Discrimination Case
The Court of Appeal
today dismissed an appeal by British Telecommunications plc (“BT”) against a
decision of the Industrial Tribunal that BT discriminated against a man who
applied for a graduate post by failing to make reasonable adjustments for his
disability.
Kevin Owen Meier (“the claimant”) graduated with a
2.1 degree in computer science. He has
Asperger’s Syndrome (“ASD”), dyslexia and dyspraxia. On 13 March 2017 his mother emailed an
application with his CV to BT who had advertised network design and engineering
opportunities for graduates. She
supplied information that the claimant was a disabled person who suffered from ASD
and dyslexia and was seeking to avail of the BT Disability Scheme (although
BT’s recruitment team was not made aware of the contents of the monitoring
information about the claimant’s disability and it was not BT’s practice to
provide that information to the recruitment team).
BT is a member of the Disability Confident Scheme
(“the DCS”) which aims at helping an employer to employ and retain disabled
people. Under the DCS the business is
expected to be actively looking to attract and recruit disabled people and to
provide a fully inclusive and accessible recruitment process. Under the Guarantee Interview Scheme, BT
guaranteed to interview anyone with a disability whose application met the
minimum criteria for the position (i.e. evidence in the application form which
demonstrates that the applicant generally meets the level of competence
required for each competence as well as meeting any of the qualification skills
or experience defined as essential). However
in addition BT used a Situational Strength Test (“a SST”) to assess whether an
applicant demonstrates attributes and behaviours identified as desirable for a
role. The BT SST presents a series of
scenarios covering a range of different situations with the candidate being
invited to respond to each using a rank ordering of five different options.
On 15 March 2017, BT sent the claimant an email
telling him that he should complete the SST and once that was done he would be officially
in the process that was being taken forward.
The Court said that BT’s approach was therefore to treat a satisfactory
outcome to the SST as a necessary criterion to be fulfilled in order to be
considered for recruitment. It noted
there was no evidence that this had been included in the minimum criteria. The SST followed the submission of the
application form. It was not stated to
be a qualifying criterion in itself. The
claimant’s mother had grave misgivings about the ability of her son to do well
in the SST but assumed that in view of the guarantee of an interview under the
Graduate Recruitment Team (“the GRT”) he would in any event be interviewed. The Court heard, however, that the
application that went to the GRT was anonymised and did not contain the
information about the claimant’s disability.
The GRT, therefore, was not aware that he wished to be considered under
the DCS.
The claimant fared badly in the SST and was
informed by email on 19 March that “based on the outcome of the test we will
not be taking your application forward”.
After the SST, 742 persons progressed to the first stage of interview by
Skype with 166 persons ultimately being offered appointment. The claimant’s mother sent an email the
following day 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 the claimant’s particular disability.
BT’s HR team pointed out that the claimant could have contacted BT in
relation to his disability. The owner
of the SST, in an internal document to BT’s HR team, stated that when a
candidate shares that they have autism at the start of the recruitment process,
a recruiter should have a conversation with them about what the test involves
and any reasonable adjustments they need.
If the adjustments cannot be implemented due to the nature of the test,
then the candidate should be allowed to bypass the SST. If this conversation had not taken place,
then the applicant should be encouraged to share more detail about how his
condition is impacting on him so that BT might further evaluate if there are
grounds for adjustments to this assessment.
In a response to the claimant’s mother dated 6
April, BT HR pointed out that BT did not accommodate a recruiter having a
conversation with the applicant as a recruiter did not touch the application
until after the SST stage. It was added
that BT had never bypassed the SST for any other applicant that year. In a letter to the claimant it was stated
that “while BT did work hard to be as inclusive as possible it was important to
ensure that the employer took forward candidates who are most likely to have a
successful and enjoyable time on the programme”.
On 17 May, the claimant’s mother drew BT’s
attention to a decision of the UK Employment Appeal Tribunal (“the EAT”) where
the EAT upheld a decision 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. The EAT found that the requirement that the
applicant should take part in an online multiple choice situational judgment
test was a criterion or practice which put the applicant at a personal
disadvantage. BT HR replied on 12 June
2017 stating that the claimant had never identified what adjustments were
needed and that it would consider whatever identified adjustments could be
accommodated. The HR team did not make
any reference to the adjustment provided for in BT’s Guarantee Interview Scheme
(namely moving a candidate to the interview stage) and made no suggestion that
the SST could or should be bypassed. The
reply put the onus on the claimant to come forward with an adjustment to the
SST. The claimant’s mother then pursued
a claim to the Industrial Tribunal (“the Tribunal”).
The Tribunal concluded, on the evidence adduced,
that BT knew from 14 March 2017 that the claimant was a disabled person
suffering from ASD and dyslexia who was seeking to avail of BT’s Disability
Confident Scheme. It said the GRT knew
the claimant 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 the claimant was disabled and that his disability
was placing him at a substantial disadvantage.
Counsel for BT submitted to the Court of Appeal
that BT did not have the requisite knowledge to trigger a reasonable adjustment
duty in April and did not know that the claimant was likely to be placed at a
substantial disadvantage because of his disabilities. The Court, however, 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. It commented
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. The Court also noted that BT did not follow
the suggestion made by the SST owner that there should be a conversation
between the recruiter and the claimant and that BT appeared to refuse to
consider the option of bypassing the SST.
The Court also commented that BT did not carry out the recommendation
that the claimant be encouraged to share details of his disability and how it
impacted on him so that an evaluation could be made if there were grounds for
adjustments to the SST.
Central to the appeal was the contention that when
BT’s attention was drawn to the EAT’s decision it sought to engage with the
claimant with a view to making reasonable adjustments. The Court of Appeal, however, said that a
fair reading of the email communication showed that BT was still failing to face
up to the commitment to allow the claimant to proceed to an interview stage
notwithstanding its guaranteed interview commitment in the Guarantee Interview
Scheme and it expected the claimant to propose a reasonable adjustment without
itself recognising that the employer had a legal duty to consider what
reasonable adjustments would be appropriate.
The Court commented that there was nothing preventing BT from properly
engaging at an early stage in relation to the positive duty placed on it to
make reasonable adjustments for the claimant and accepted that the claimant
acted reasonably in lodging proceedings:
“It was at the stage at which BT rejected the
claimant as a candidate because of his failure to satisfy the SST that BT’s
primary act of disability discrimination by reason of a failure to make
reasonable adjustments occurred. While
BT may have sought to give the impression that it was in some way treating the
claimant as still in the competition it never in terms withdrew its rejection
of him as a candidate. It never in terms
accepted that it was proposing to make the reasonable adjustments which the
Tribunal properly found were necessary to deal with the claimant’s disability.
… We conclude that no error can be
detected in the reasoning or in the fact finding of the Tribunal in its
decision that BT was liable for disability discrimination by reason of its
failure to make reasonable adjustments.”
The Court of Appeal dismissed the appeal.
NOTES TO EDITORS
This summary should be read together with the
judgment and should not be read in isolation.
Nothing said in this summary adds to or amends the judgment. The full judgment will be available on the
Judiciary NI website (https://judiciaryni.uk).
ENDS