Appeal No. UKEAT/0470/10/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 February 2011

Before
HIS HONOUR JUDGE RICHARDSON
MS K BILGAN
MRS M V McARTHUR BA FCIPD

MR S NOOR	APPELLANT

FOREIGN & COMMONWEALTH OFFICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ABOU KAMARA
(Representative)
	
For the Respondent	MR ROBERT KELLAR
(of Counsel)
Instructed by:
Treasury Solicitors Office
Litigation & Employment Group
One Kemble Street
London
WC2B 4TS	

SUMMARY
DISABILITY DISCRIMINATION – Reasonable adjustments
PRACTICE AND PROCEDURE – Striking-out/dismissal

The Employment Judge erred in striking out the Claimant’s claim.  The Claimant, a job applicant, was interviewed about a competency different to that which had been (mistakenly) set out in the advertisement for the post.  The Employment Judge correctly proceeded on the basis that the Claimant, who was disabled, had been placed at a substantial disadvantage by a PCP applied by the Respondent.  She ought not to have struck out the claim unless it was plain and obvious that there was no step which it was reasonable for the Respondent to take in order to prevent the PCP having that effect.  It was arguable that there were steps which it was reasonable for the Respondent to take in order to prevent the PCP having that effect.  Project Management v Latif Institute [2007] IRLR 57 considered.  The Employment Judge also erred in her construction of section 18B(1)(a) of the Disability Discrimination Act 1995; HM Prison Services v Beart [2002] EAT/650/01 applied.  Appeal allowed.

HIS HONOUR JUDGE RICHARDSON 

1.	This is an appeal by Mr Sadik Noor (“the Claimant”) against a judgment of the Employment Tribunal sitting in Reading (Employment Judge Hill sitting alone) dated 24 June 2010.  He had brought a claim of disability discrimination against the Foreign and Commonwealth Office (“the Respondent”).  By her judgment the Employment Judge struck out this claim as having no reasonable prospect of success.

The background facts
2.	The Claimant is a British citizen of Somali ethnic origin.  His CV records that he worked for a year for the United Nations in Somalia in 1993-1994; came to this country in 1995 as a refugee; obtained a law degree at university; and began to work for the immigration service in 2003, becoming an immigration officer in 2005.  His CV also discloses that he has disabilities – dyslexia and dyspraxia.  There is a report confirming that he has severe dyslexia.  He is capable of performing his work as an immigration officer with adjustments.

3.	In 2009 the Respondent advertised a post which was of great interest to him – the post of Somalia Multilateral Desk Officer.  He saw an external advertisement.  The external advertisement identified the key competencies as delivering results, managing external relationships, problem solving and judgment, communicating and influencing.

4.	The Claimant completed an application form, providing evidence for these four competencies.  He disclosed the disabilities he had.  Adjustments were made for him.  Arrangements were made that the interview should not be at the beginning of the day, that he should be allowed extra time at his interview (it was extended by 50%), that the interview panel would repeat or clarify questions on request and that he would be permitted to write down questions.

5.	It seems that there was a mistake in the external advertisement.   One of the competencies should have been strategic awareness rather than problem solving and judgment.  The Respondent’s internal advertisement had apparently been correct.

6.	On 6 July 2009, four days before the interview, the Respondent emailed the Claimant to confirm the time of his interview.  The email stated the correct competencies; but the Respondent assumed the email was mistaken and that the job advertisement was correct.  He had, after all, been selected for interview on the basis of an application form which answered the four competencies in the advertisement and did not mention strategic awareness.

7.	However, part-way through the interview the Claimant was asked about strategic awareness.  He was surprised but did his best to answer.  Later in the interview he raised the matter.  Afterwards he wrote a polite letter of complaint.  He said that he was placed at a disadvantage because of what happened.  He asked whether he could be re-interviewed.   By this time he appreciated that the mistake had been in the advertisement.  He said it would be “unfair and unjust to be denied this fantastic opportunity because of that mistake”.

8.	The Respondent refused his request.  He was told that, irrespective of the answers he gave on the question of strategic awareness, the marking at the interview was such that he would not have been appointed.  He was shown the panel’s comments and marks on him, which tended to support what the Respondent said.

The Tribunal proceedings
9.	In his claim form the Claimant set out the facts on which he relied and claimed disability discrimination.   He did not assert any particular reasonable adjustment which should have been made.  He said:

“It is my case that I was discriminated against because of my disability.... I have described above how the Foreign and Commonwealth Office’s arrangements put me at a substantial disadvantage.  That substantial disadvantage led to a detriment when I was not offered the position applied.  The treatment I received was unfair and has affected my confidence and self esteem”

10.	In its response the Respondent put the question of disability in issue, denied that any further reasonable adjustment was required and denied that the “alleged adjustments” would have made any material difference to the outcome of the Claimant’s application.  Moreover the Respondent applied to strike out the Claimant’s claim.

11.	By the hearing of the striking out application the Respondent had provided all the marking sheets for all the candidates.  These sheets appear to indicate that there were very strong candidates for appointment with scores significantly higher than the Claimant’s score.  Indeed they appear to indicate that even if the Claimant was given a maximum score for strategic awareness and for the other competency on which he was asked questions after strategic awareness he would still have been third equal in the ranking.

12.	In its submissions the Respondent highlighted the Claimant’s contention that he ought reasonably to have been offered a further interview and said that (1) he should in any event have realised that the correct competency was strategic awareness, and (2) this reasonable adjustment would not in any event have made a difference.  The Claimant’s submissions certainly included this contention, but were not restricted to it.  The Claimant complained about the introduction of the unknown competency during interview causing him substantial disadvantage.  It was said there was no duty on him to identify the reasonable adjustment required.

The Tribunal’s reasoning
13.	The Employment Judge, after setting out the background facts and the contentions of the parties, said:

“14. It is extremely rare that a claim of disability discrimination would be struck out as having no reasonable prospect of success.  The only issue in this case was the failure to make reasonable adjustments.  In order for the Claimant to succeed he must show a) that he is disabled and b) that the provision, criterion or practice imposed by the Respondents has placed him at a substantial disadvantage.
15. I am satisfied that the Respondents will be able to demonstrate that for the interview process adjustments were made to enable him to perform his role.  That does not appear to be the Claimant’s concern.  His concern is the late change of the competencies.
16. The late change of the competencies clearly places the Claimant at a disadvantage compared to a person who is not disabled.  What is the duty of the Respondents in this regard?  It clearly could be an argument that the Respondents have in fact notified the Claimant giving him four days notice of what will be the subject matter of the interviews and the Claimant did not challenge the matter at the time and nor did he pick up that he needed to prepare in a different way.
17. Would it make any difference if the Claimant were the subject of a re-interview?  In order for an adjustment to be reasonable, Section 18B(1)(a) says that it must show that taking that step would prevent the disadvantage.
18. If the Respondents were to have re-interviewed the Claimant it would make no difference.  He clearly scored on a number of competencies below the relevant line.  To re-interview him on one aspect would be a matter of principle only, it would not in fact achieve the end of removing a disadvantage such that he would obtain the job, it would merely give him the opportunity but then be marked as a fail again.
19. It cannot be said in those circumstances, therefore, that this would be a reasonable adjustment that the Respondents had failed to take.  I consider that no reasonable Tribunal could reach the conclusion that the Claimant had demonstrated that the Respondents were under a duty to make that adjustment or that it was a reasonable adjustment.  And in those circumstances I strike out the claim as having no reasonable prospect of success.”

Submissions on appeal
14.	On behalf of the Claimant Mr Kamara submits that the Employment Judge was wrong to strike out the claim.  A full investigation of the facts was required.  In particular the Employment Judge was wrong to say or assume that everything required by way of reasonable adjustment was undertaken before the interview.  If something occurred – such as a mistake or the discovery of a mistake – which required an additional adjustment to be made the Respondent should have made a further adjustment: Project Management v Latif Institute [2007] IRLR 57.  The duty to make reasonable adjustments was on the employer: see Cosgrove v Caesar & Howie [2001] IRLR 653 and (since substantial disadvantage was proved) the burden shifted to the employer.  No evidence was heard from the Respondent as to whether any other form of reasonable adjustment was considered.

15.	Further Mr Kamara submits that the question was not whether making the reasonable adjustment would have enabled the Claimant to get the job, as (he submits) the Employment Judge apparently thought.  There will be many adjustments which it is reasonable for an employer to take which will not necessarily mean that the disabled person will be successful, or indeed will not even remove entirely the disadvantage which the disabled person is encountering.  But that does not, of itself, absolve the employer from the duty to take the steps.

16.	On behalf of the Respondent Mr Kellar submits that the Employment Judge reached the correct conclusion for the correct reasons.  It was indeed demonstrated by the panel’s markings that the Claimant would not have been appointed to the job irrespective of his performance in the interview after he was taken by surprise by the introduction of questions on strategic awareness.  He further submitted that apart from re-interview no other potential adjustment was obvious to the Tribunal.  This being so, the guidance in Project Management v Latif was apposite.

17.	We asked Mr Kellar whether the Employment Judge ought to have considered whether any reasonable adjustment could have been made before or at the interview.  He submitted that, having regard to Project Management v Latif, the Employment Judge was not bound to consider any such adjustment, and in any event he submitted that no adjustment could alter the fact that the Claimant would not have been successful in obtaining the post.  This, he submitted, was the Claimant’s concern as set out in the claim form.

The legislative provisions
18.	The duty to make reasonable adjustments arose, at the time in question, from section 4A(1) of the Disability Discrimination Act 1995, which provided:

“(1) Where –
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer, 
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”

19.	This duty arose in respect of recruitment processes: see section 4A(2).  Breach of the duty amounted to discrimination on the grounds of disability: see section 3A(2).

20.	Section 18B(1) provided as follows:

“(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to –
(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is practicable for him to take the step;
(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;
(d) the extent of his financial and other resources;
(e) the availability to him of financial or other assistance with respect to taking the step;
(f) the nature of his activities and the size of his undertaking;
(g) where the step would be taken in relation to a private household, the extent to which taking it would –
(i) disrupt that household, or
(ii) disturb any person residing there.”

21.	As to the burden of proof, section 17A(1C) provided:

“Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.”

Our conclusions
22.	The Employment Judge proceeded on the basis that what she described as the “late change in competencies” clearly placed the Claimant at a disadvantage compared to a person who is not disabled.  As we understand it, she was in error to suppose that there was a late change in competencies.  The true position is that the competencies always included strategic awareness rather than problem solving and judgment.  But she was plainly right to proceed on the basis that the Claimant was placed at a substantial disadvantage compared to a person who is not disabled when he was required to answer questions in interview on a competency which was not contained in the advertisement for the job.  Any candidate would be disadvantaged if they had not prepared to answer questions on a particular competency; but a person with severe dyslexia, who required to prepare for an interview in a particular way, would be at a substantial disadvantage compared to a person who was not disabled.

23.	The question for the Employment Judge was therefore whether the Claimant had an arguable case that the Respondent ought to have made a reasonable adjustment.

24.	To what extent was the burden on the Claimant to put forward a reasonable adjustment?  There is, as Mr Kellar submitted, helpful guidance in the Disability Rights Commission’s code of practice at paragraph 4.43 and in Project Management v Latif at paragraphs 53-55 and 57.

25.	Paragraph 4.43 provides:

“To prove an allegation that there has been a failure to comply with the duty to make reasonable adjustments, an employee must prove facts from which it could be inferred in the absence of an adequate explanation that such a duty had arisen, and that it had been breached.  If the employee does this the claim will succeed unless the employer can show that it did not fail to comply with its duty in this regard.”

26.	In Project Management v Latif the Appeal Tribunal (Elias P presiding) said:

“53  ....... It seems to us that by the time the case is heard before a tribunal, there must be some indication as to what adjustments it is alleged should have been made.  It would be an impossible burden to place on a respondent to prove a negative; that is what would be required if a respondent had to show that there is no adjustment that could reasonably be made.   Mr Epstein is right to say that the respondent is in the best position to say whether any apparently reasonable amendment is in fact reasonable given his own particular circumstances.  That is why the burden is reversed once a potentially reasonable amendment has been identified.
54  In our opinion the paragraph in the Code is correct.  The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached.  Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty.  There must be evidence of some apparently reasonable adjustment which could be made.
55  We do not suggest that in every case the claimant would have had to provide the detailed adjustment that would need to be made before the burden would shift.   However,  we do think that it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not......
57  We accept, however, that the proposed adjustment might well not be identified until after the alleged failure to implement it, and in exceptional cases, as here, not even until the tribunal hearing.  Indeed, in certain circumstances we think it would be appropriate for the matter to be raised by the tribunal itself, particularly if the employee is not represented.   To take a simple example, where a Code provides an example of an adjustment which on the face of it appears appropriate, that is something the tribunal should take into account.  We think that it would be perfectly proper for a tribunal to expect an employer to show why it would not have been reasonable to make that adjustment in the particular case, although of course the employer must have a proper opportunity of dealing with the matter.”

27.	An Employment Judge considering whether to strike out a claim where the disabled person establishes that an arrangement has caused substantial disadvantage ought to keep this guidance firmly in mind.   In such circumstances the focus will, of course, be on any specific reasonable adjustment which the employee has put forward; but an Employment Judge should carefully consider whether there is any other potential reasonable adjustment and should strike the claim out only if it is plain and obvious that there is none.

28.	In this case we consider that the Employment Judge fell into error by concentrating on the proposal for re-interview.  She ought to have considered also the question whether any adjustment could have been made prior to, or at, the interview to prevent the disadvantage.

29.	If she had done so, we think there is an adjustment which plainly ought to have been considered.  It is, we think, certainly arguable that prior to the interview the Respondent ought to have read the Claimant’s application form; seen that his form did not address one of the key competencies; appreciated the particular difficulty this would cause at interview; alerted him to this fact; and given him the opportunity to complete, prior to the interview, an application form which dealt with the key competencies.  In this way he would have been prepared for the interview in the same way as the other candidates.

30.	It is also, we think, arguable that at the interview, when the Respondent appreciated that the Claimant had not been prepared to deal with a competency, adjustments might have been made before the panel reached a final decision.  The Claimant might have been re-interviewed before a decision was taken; or some allowance made in the marking.

31.	We should certainly not be taken as saying that the claim will succeed on any of these bases; it might or might not.  But we do not think the claim should have been struck out without consideration of them.

32.	The Employment Judge’s reasoning was, we think, erroneous in two other respects.

33.	Firstly, she said that in order for an adjustment to be reasonable, section 18B(1)(a) says that it must show that taking that step would prevent the disadvantage.  Section 18B(1)(a) does not say this.  It is a statutory direction to take into account the extent to which the step under consideration would prevent the effect in relation to which the duty is imposed.   Although the purpose of a reasonable adjustment is to prevent a disabled person from being at a substantial disadvantage, it is certainly not the law that an adjustment will only be reasonable if it is completely effective.   See, for example, HM Prison Services v Beart [2002] EAT/650/01 at para 29.

34.	Secondly, she departed from the framework of the statute when she concluded that the “end of removing the disadvantage” was “such that he would obtain the job”.  The true analysis of the position is rather different.

35.	The purpose of the reasonable adjustment is to prevent whatever provision, criterion or practice from placing the disabled person at a substantial disadvantage: this follows from the wording of section 4A.

36.	If the substantial disadvantage arises from arrangements for interview (see section 4(1)(a) of the 1995 Act) and relates to the ability of the disabled person (compared to persons who are not disabled) to perform in interview for a job, then the purpose of the reasonable adjustment is to remove that disadvantage – in other words, to eliminate the practical difficulty and embarrassment which the PCP has caused and create a level playing field for the disabled person in interview.    If a reasonable adjustment should have been made for this purpose it is not fatal to the disabled person’s case that he or she would still not have obtained the job.

37.	Let us suppose, for example, that it was reasonable to make an adjustment prior to the interview so that the Claimant was prepared to deal at interview with the correct competences.  The Claimant would then have been spared the experience of undertaking the second half of the interview in conditions where he was at a substantial disadvantage to persons who were not disabled.  It would not have been fatal to his case that he would not have obtained the job, although that would be relevant to remedies, including the amount of any compensation.

38.	We think we have said sufficient to make it clear that this appeal must be allowed.  We do not think a re-hearing of the striking out application is required.  In our judgment, for the reasons we have given, the matter should proceed to a case management discussion and a full hearing.

39.	We should finally make it clear that we are not expressing any view as to whether ultimately the proceedings should succeed and if so on what basis.   All questions of fact will be for the Employment Tribunal to determine.