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Legal Corner: BT failed to make adjustments for autistic job applicant

27th Sep 2019

The National Autistic Society estimates that around 700,000 people in the UK are living with Autism – a spectrum of conditions which includes some with learning difficulties, and those who are ‘highly functioning’ but may struggle with social interaction or coping with change.

Those with Autism are highly likely to be considered as ‘disabled’ for the Equality Act 2010, which means that an employer may not discriminate against them for this reason, and – more significantly – has a duty to make reasonable adjustments for them.

The impact of this duty at the job application stage was highlighted in the recent case of Meier v British Telecommunications PLC which was heard in the Court of Appeal in Northern Ireland (GIR11016).

Mr Meier suffered from Asperger’s syndrome, dyslexia and dyspraxia. Notwithstanding this, he had a very high IQ and had obtained a 2:1 degree in Computer Science. He applied to BT for a place on their Graduate Programme, providing full details of his disabilities in the attached monitoring form.

He was required to complete an online ‘Situational Strengths Test’ (SST) and candidates were selected for interview based on their performance in the SST. However, BT was a member of the Disability Confident Scheme, which offered guaranteed interviews to disabled candidates who met the minimum criteria for a role.

Therefore, although Mr Meier had reservations about his ability to successfully pass the SST, given his conditions, he assumed that he would still be guaranteed an interview.

Unfortunately, Mr Meier did not perform well in the SST and was informed that his application would not be taken forward. The monitoring form he had completed which set out his disabilities had been kept separate from his application form and so the team processing his application were unaware of them.

Mr Meier’s mother then began a course of email communication with BT in which she criticised the use of the SST and asked whether adjustments could have been made for her son.

In internal correspondence between the SST provider and BT, the provider advised that where an application had Autism, a recruiter should speak to them and explain what the test involved and what difficulties they might face, so adjustments might be considered.

If that had not occurred, then they suggested that BT seek further details from Mr Meier to understand whether there were grounds for making adjustments to the test. The HR advisor dealing with the case chose to ignore this advice and took the view that recruiters did not usually contact application until after they had passed the SST, so no exception would be made here.

The advisor assumed that the only adjustment would have been to bypass the SST altogether, and since that had not been offered to anyone else, it was not appropriate to offer it to Mr Meier. Further correspondence then put the onus on Mr Meier to set out what adjustments he required and noted that this had not been provided.

Mr Meier brought a claim for discrimination on the grounds of his disability. BT attempted to argue that it did not know about his disabilities at the point of his application since the monitoring forms (which included space to note such matters) were not considered alongside the application form. However, the tribunal found that by completing the monitoring form and sending it to BT, Mr Meier had made them aware.

BT had failed to take any steps to check whether any information in the monitoring form was, or might be, relevant to the assessment and interview process. Had they done so, they should have realised that he would be placed at a substantial disadvantage in completing the SST.

The tribunal also confirmed that the duty to make adjustments did not lie with Mr Meier, but with BT; BT could have decided either that Mr Meier was not required to sit the SST, or not taken his score into account when deciding whether to offer him an interview. They had also failed to follow the suggestions made by the SST provider. These were all adjustments that were reasonable, and not impractical in any way. BT appealed to the Court of Appeal against all these findings, but unsurprisingly, their appeal failed.

This case highlights the fact that the legal protection available to individuals does not only cover employees but includes applicants for roles as well. Employers need to take note of the information provided in any monitoring forms, to consider whether it might have a bearing on the application process.

Employers also need to consider whether any part of their recruitment process might adversely impact on candidates and if so, consider what adjustments it might be able to make to mitigate against them.

Safia Tharoo
Barrister, 40 Bedford Row, London

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