Dealing with disabled applicants - policy advice

What is a reasonable adjustment?

The Disability Discrimination Act (DDA) gives a non-exhaustive list of examples of adjustments that an employer could be required to make, including the following, which could apply to a recruitment exercise:

Making adjustments to premises
Acquiring or modifying equipment
Modifying instructions or reference manuals
Modifying procedures for testing or assessment
Providing a reader or interpreter.

The statutory Code of Practice on Employment and Occupation also contains some examples, such as:

Extending time in a letter-writing test for a job applicant with dyslexia
Providing an adapted keyboard for a person with arthritis
Providing a large visual display unit screen for a person with a visual impairment.
Whether an adjustment at recruitment would be considered reasonable depends on factors such as:
Whether the adjustment would actually ameliorate the disadvantage (the most important factor)
How cost effective and practicable it is
The size and resources of the employer
Whether the employer has access to external advice or help from an organisation such as Remploy.

Ensuring that recruitment policies comply with the laws on equality at work is a significant challenge for employers. The law on recruiting disabled staff is particularly complex, as it incorporates the duty to make reasonable adjustments to selection and interview procedures and the premises used for those procedures, where it appears to the employer that its normal recruitment arrangements could, or do put a disabled person at a disadvantage.

The law on disability discrimination in general and reasonable adjustments in particular is very complicated. However, employers can do a great deal to minimise risk in this area by devising and promulgating a policy (see box below) and making sure that managers involved in recruitment are trained in it.

Adjustment call

One area of real practical difficulty is how an employer can identify whether it needs to make an adjustment during the recruitment process without creating the impression that knowledge of the disability has influenced the recruitment decision inappropriately. Employers can be particularly hampered in this process by the reluctance of employees to disclose that they have a disability, only to raise the issue at a later stage when they have not been selected for a role. The question is then whether the employer ought to have known about the disability – was there something that should have alerted them to the possibility, and should they have made further enquiries?

This predicament is well illustrated by the recent case of Jocelyn Grey. Grey is a well-qualified nurse who has dyslexia and is a disabled person under the Disability Discrimination Act (DDA). She applied unsuccessfully for a senior post with Eastern and Coastal Kent Primary Care Trust, after performing less well than she had expected to at interview.

In the know?

Although she had given some indication that she was a disabled person, the interview panel did not know of her disability and she did not ask for any adjustments to be made – despite being asked before the interview if she needed any. She opted not to say anything because she was confident of her ability to perform. Grey was also concerned that the interview panel might take an adverse view if they were aware of her disability.

Having not been appointed, she brought proceedings against the trust under the DDA. The tribunal found that the trust had failed to make reasonable adjustments. After an appeal by the trust the case was sent back to the tribunal and the ultimate outcome is not yet known. However, it is possible that the tribunal may decide that the trust was at fault for failing to let the interview panel know about Grey’s dyslexia.

The case highlights a complex problem that employers often struggle with in relation to their knowledge of a job applicant’s disability. The Act exempts employers from the need to make reasonable adjustments if they do not know about the disability; and could not reasonably be expected to know about it; plus did not know and could not reasonably be expected to know that the disability would put the job applicant at a disadvantage during the selection process.

Balance

The judge in Grey’s case acknowledged that the law is ‘very complicated’ in requiring employers, as it does, ‘to draw a balance between the interests of the disabled person and those of his or her actual or potential employer’. How can an employer balance the need to know about the disability (so that they can make reasonable adjustments both at the recruitment stage and later on), with the need to prevent knowledge of the disability affecting the job applicant unfairly during the recruitment process?

Can it take at face value the applicant’s assertion that no ‘special arrangements’ are required at an interview? The EAT judgment would suggest otherwise – and that is consistent with previous cases in which employers have been found to be under a duty to look beyond what employees are prepared to tell them. The Code of Practice on Employment and Occupation also states that an employer must ‘do all it can be reasonably expected to do to find out’ whether the employee has a disability and could be placed at a substantial disadvantage because of it.

Christina Morton, professional support lawyer, Withers

TOP TIPS

All managers involved in recruitment procedures should have appropriate training.

Application forms should have a detachable portion that identifies characteristics that might be needed for monitoring purposes, or that identify a disability that could require a reasonable adjustment to be made.

Online application forms should be designed so that this information can be separated from the main application.

Shortlisting should be carried out as far as possible by managers who have not seen any information that discloses the existence of a disability.

Information disclosing a disability should be retained by a different manager, who must then make decisions about:

whether and at what stage to discuss any disability with the job applicant (but should always raise it if the applicant appears ambiguous).
any adjustments the employer should make in light of that discussion, taking into account any equipment the applicant has and taking advice if necessary.
whether and at what stage to disclose the existence of a disability to the interview panel; this is a difficult judgment to make but if an applicant has disclosed the existence of a disability that could affect interview performance the panel should normally be informed.

The interview panel should have training in best practice at interview to enable them to make appropriate use of information that an applicant has a disability.

The Remploy view

The laws around equality and diversity are generally very well advertised in most public and private sector organisations. Misinterpretation of those laws, or just plain misunderstanding, leads many recruiting managers to resemble a “rabbit in the headlights” when it comes to employing disabled people.

A common misinterpretation of the legislation is that recruitment processes need to be applied consistently to each applicant, and that this makes the process equal. The reality is that the employer is required to level the playing field, to make their processes equally accessible to all, which may mean that changes to processes, or reasonable adjustments, may be necessary.

Under the Disability Discrimination Act, an employer can be found to have discriminated without being aware that an employee was disabled. An employer will not, however, be under a duty to make reasonable adjustments unless it knows, or could reasonably be expected to know, that a job applicant has a disability. Many HR departments feel that the ‘Pepsi challenge’ approach – to blindfold the interviewer so that they can’t see the disability and therefore won’t be able to discriminate – is the best way to ensure equality. But experience and case law shows a different picture, and leaves the employer following this practice at a huge risk of legal action.

Best practice is for the employer to do all it can reasonably be expected to do to encourage applicants to disclose any disability or long-term health condition. Once disclosed they can then ensure that reasonable adjustments are made, leading to a genuinely inclusive recruitment process that targets the right person for the job.

Remploy is a leading provider of specialist employment services for people with disabilities, and those who experience complex barriers to employment.

Jo Munns, head of specialist services, Remploy