Noor v Foreign & Commonwealth Office UKEAT/0470/10/SM

Subjects: Reasonable Adjustments in Recruitment – Identifying the Disadvantage – Effectiveness ofAdjustment

C was applied for a position with R and claimed he was discriminated against during the recruitment process. His case was struck out at a preliminary hearing. The ET held that C’s suggested adjustments were unreasonable because, even if they had been made, C would still not have been offered the job. C appealed.

Facts

C suffered from dyslexia and dyspraxia. He applied for a job as an immigration officer. The job advertisement mistakenly listed only 4 key competencies when 5 were required. C completed an application form which provided evidence of the 4 key competencies and which also informed R about his disabilities. As an adjustment R allowed C to have 50% more time at his interview and permitted C to write down the panel’s questions. During the interview C was asked about the 5 th key competency. He was surprised but did his best to answer. He raised the problem of the additional key competency in his interview and wrote a polite letter of complaint afterwards. C asserted to both R and later to the ET that it would be a reasonable adjustment to re-interview him. The ET struck out his complaint following a preliminary hearing in which R produced the marking sheets for the other candidates. These showed that even if C had received the maximum score for the 5 th key competency he would not have been selected for the post. The ET held that re-interviewing C could not be a reasonable adjustment since it would have made no difference to the outcome of the selection process and therefore his claim had no reasonable prospect of success.

Held

The EAT allowed the appeal. His Honour Judge Richardson, relying on Project Management Institute v Latif [2007] IRLR 579 (see Art, NLJ, Oct 2007) stated that an employment judge considering a strike out had to bear firmly in mind the shifting burden of proof in reasonable adjustments cases and the fact that an adjustment might not be identified until a late stage in the proceedings. His Honour stated that “It is certainly not the law that an adjustment will only be reasonable if it is completely effective” (see para. 33). His Honour also disagreed with the ET’s analysis of the disadvantage caused by the PCP. The purpose of the adjustment was to eliminate the practical difficulty and embarrassment which the PCP caused and to create a level playing field for the disabled person in interview. It was not fatal to C’s case that he or she would not have obtained the job although it was obviously relevant to quantum.

Comment

The difference between the outcome in this case and that in Lancaster v TBWA (see 2011/Q1/p.3) is striking and derives from the description given to the disadvantages caused by the respective PCP. In Lancaster the disadvantage was described as failing to get/keep the job then no adjustments were reasonable since no adjustments would have remedied that disadvantage. Where, on the other hand, the disadvantage was the inability to compete on a level playing field then reasonable adjustments could have done something to alleviate that disadvantage. It is also worth considering the case of Thameside Hospital v Mylott (2001/Q1/p.6). In that case Underhill P set out the extent to which an adjustment must prevent a disadvantage before an employer is required to make it. It was the description of the PCP in Noor and Lancaster cases determined whether the adjustment was capable of preventing the disadvantage.