Case study: Allisha Collins, conference administrator, Gateway Centre, Liverpool
Allisha Collins has retinitis pigmentosa (RP), a hereditary eye disorder. Nigel Byrne, manager at the Gateway Conference Centre, interviewed Collins for the conference administrator post but didn’t ask her any questions about her visual impairment. He knew that Collins was partially sighted but was much more interested in whether her personality and skills were right for the job. “We needed someone with bags of personality because the role is very much a customer-focused one. She had just the skillset that we were looking for,” says Byrne.
“After she started to work for the company, I talked to Allisha about her impairment and about what support she would need to do her work”. Collins now uses a text-enlarging machine, a lightweight electronic magnifier, which she uses at work to read documents, but can also use to read magazines and novels – for the first time in her life.
Byrne adds: “Keep an open mind. Look at what people can do rather than what they can’t do. If you always look at what people can’t do, then to be fair you’d have to start looking at what some non-disabled people can’t do, such as mental arithmetic.”
Case study: Stephen Batchelor, kitchen porter, Thorpe Park Hotel and Spa, Leeds
In May 1988, Stephen Batchelor lost his right arm in a serious car accident. He has been employed in his current job for five years and was previously employed in a similar role at another hotel.
If Gordon Jackson, general manager at Thorpe Park Hotel and Spa, had to sum up his approach to recruitment in one phrase, it would be: ‘prove you can do the job’. Before being offered permanent employment at the hotel, every potential employee – disabled or not – is given the chance to demonstrate whether they can fulfil all the requirements of a particular role. “We always ask ourselves whether there is any logical reason why we cannot employ a person who has a disability but has the right attitude,” says Jackson. “There might be hurdles to overcome, but then we think of what we can do to overcome those hurdles”.
After a successful interview, candidates are employed on an eight-week probationary basis to give both employer and employee a chance to assess whether the job and the person are well matched. With Batchelor, the hotel was only interested in his level of productivity – whether he could be as productive with one arm as other employees. “My main priority as a manager is to look for the right attitude in people because that is the hardest thing to develop or change in a person,” says Jackson. “It’s far easier to train a person who has the right attitude than it is to try to change the wrong attitude of a person who may have the right skills for a job. If a person happens to be disabled, then it makes no difference to us.”
Batchelor believes the solution is for employers to accept people for who they are and what they can do, rather than make assumptions about what they might be able or unable to do. He also supports Jackson’s approach to giving people a trial period. “See what disabled people can do before making a decision,” he says.
Under the Disability Discrimination Act 1995 (DDA), an employer has a duty to make reasonable adjustments where its provisions or practices, or the physical features of its premises, have the effect of placing a disabled person at a “substantial disadvantage” (defined as one that is not minor or trivial) when compared to people who are not disabled. The DDA expressly provides that this duty extends not only to current employees, but also to applicants for employment. Employers should consider issues of disability discrimination throughout the recruitment and selection process, from formulating the job specification and advertising the position through to the appointment of the successful candidate.
When is an adjustment reasonable?
The DDA defines reasonableness in terms of the extent to which the adjustment would prevent substantial disadvantage to the disabled applicant and the extent to which it is practicable for the employer to undertake the adjustment, taking into account factors such as the nature and size of the organisation, the disruption caused by making the adjustment and the likely cost. When looking into the financial implications of making adjustments, the employer should consider its resources and any financial assistance that may be available. Where it can be shown that the necessary adjustments are not reasonable, the employer has a defence to a DDA claim.
It is unlawful to publish a job ad that indicates that the recruitment decision will be determined to any extent by reference to whether or not the candidate has a disability or by a reluctance to put in place reasonable adjustments. The advert should include a statement that the employer is an equal opportunities employer and will provide reasonable support to disabled applicants during the recruitment process. It should include an invitation to potential applicants to contact the employer to identify any additional support that they might require to enable them to make an application.
Only requirements that are relevant and necessary for the performance of the role should be stipulated. For example, a requirement for candidates to have a driving licence should be included only if driving is central to the role and it would not be reasonable for the person to use other forms of transport. Similarly, minimum academic qualifications should be specified only where genuinely required.
Application forms should be available in formats that are appropriate for applicants who are visually impaired: this might include large print, Braille or audio. The layout should be easy to follow and the font should not present difficulties for people with visual impairments. For some candidates, this could prevent the need to request a form in a different format. Consider allowing candidates not to use the application form, but to present the required information in a different way – for example, by recording verbal information.
It may not be clear from a disabled person’s application whether or not the provision of reasonable adjustments would enable him or her to perform the role effectively. In such cases, where the applicant is otherwise suitably qualified, the employer should offer him or her an interview, in part to clarify the question of reasonable adjustments. Some employers have a policy of offering an interview to all disabled candidates who meet minimum requirements for the role. This is one of the commitments that employers are required to make under the government’s ‘positive about disabled people’ scheme, which allows them to use the ‘two ticks’ symbol on their job ads.
The duty to make reasonable adjustments applies to the conduct of the interview itself. Therefore, the employer should ask the applicant whether or not he or she will require any adjustments at the interview stage. These might include making changes to the location of the interview – for example, to enable wheelchair access – or the provision of an induction loop to assist applicants with a hearing impairment.
Employers should be aware that some candidates may benefit from having the interview at a particular time of the day – for example, if they have a condition that causes them to be drowsy at certain times of the day, they need to take medication or eat at specific times, or they have difficulty using public transport during the rush hour.
If candidates are required to undertake any form of test as part of the interview process, as with the application forms, it may be necessary for the employer to provide the instructions for the test in an alternative format, and to allow the candidate to present his or her answers using an alternative method. It may also be necessary for the employer to allow the candidate additional time to complete the tests, or to provide him or her with a reader or scribe. Employers should also give consideration to whether or not the tests, including any medicals, are necessary for the performance of the job.
In addition to making reasonable adjustments in preparation for the interview, the employer should raise during the interview the question of what adjustments will be required should the applicant be successful, as these may take time to organise. Research may be required if equipment, such as specialist computer software, is needed.
Whatever the requirements, the employer should handle this process of consultation with the candidate with sensitivity. It should not make assumptions about the candidate’s capabilities or the level and nature of support that he or she might require. The employer should identify whether there is a need for any measures in consultation with the applicant.
The focus of the interview should be the person’s ability to do the job, with questions on his or her disability restricted to those that have a potential impact on his or her ability to do so. The interviewer should make clear that the purpose of questions relating to the applicant’s requirements is to produce a clear indication of what he or she may need by way of adjustments. If the candidate is subsequently employed, the employer should record the results of the consultation process and the details of any adjustments that have been agreed, ideally by means of a standardised form.
If, with all reasonable adjustments in place, the disabled candidate would not be the best candidate for the job, there is no obligation on the employer to select him or her. Throughout the entire recruitment process it is important for the employer to remember that the disabled candidate is a qualified applicant who may have some additional needs in the workplace, not a ‘problem’ to be addressed. If an employer is using a recruitment agency to find candidates, or is hiring temporary agency staff, it should ensure that the agency is aware of its duties under the DDA to make reasonable adjustments.
Knowledge of the disability
An employer cannot be liable for a failure to make reasonable adjustments for a disability of which it was not aware and of which it could not reasonably be expected to be aware. Although some employers may be tempted to refrain from asking questions that could lead to them learning of a disability, this is a risky strategy as the duty also arises where an employer could reasonably be expected to know of it.
Non-disabled applicants and the DDA
The duty to make reasonable adjustments to accommodate the requirements of one candidate could be viewed as a form of positive discrimination. However, unlike most other anti-discrimination legislation, the DDA allows this and creates a statutory duty to this effect. An applicant with no disability has no protection under the DDA.
The recruitment and selection process provides many opportunities for an ill-prepared employer to discriminate against disabled applicants inadvertently, so employers must consider each stage of the process carefully to ensure compliance with the DDA. The key point is that the process of making reasonable adjustments must be one centred on a discussion with the candidate, to assess precisely what measures are required. A sympathetic and constructive dialogue, supported by standardised documentation, will ensure both that the employee performs effectively and that the risk of subsequent discrimination claims is kept to a minimum.
What can employers reasonably be expected to do?
Checklist of examples of some reasonable adjustments that an employer may need to make in relation to a disabled person:
- Making adjustments to premises
- Giving, or arranging for, training or mentoring for the disabled person or any other person
- Allocating some of the disabled person’s duties to another person
- Acquiring or modifying equipment
- Transferring the disabled person to fill an existing vacancy
- Modifying instructions or reference manuals
- Altering the disabled person’s working or training hours
- Modifying procedures for testing or assessment
- Assigning the disabled person to a different place of work or training
- Providing a reader or interpreter
- Allowing the disabled person to be absent during working or training hours for rehabilitation, assessment or treatment
- Providing supervision or other support.