Lowe v Cabinet Office ET/2203187/10
Date added: 26 May 2011
disability discrimination | reasonable adjustments | interviews
This case concerns an employer’s refusal to water down its recruitment standards for a candidate with Asperger’s syndrome.
There is often a fine line between whether or not an adjustment is reasonable, and employers should decide each case individually on its merits.
It will normally be reasonable to make adjustments that enable a disabled candidate to take part in an assessment - for example, by providing disabled access or special equipment.
However, as in this case, a requested adjustment that dilutes the entry standards for a job - for example, where the job requires the employee to possess a particular skill - may not be reasonable.
Ms Lowe has Asperger’s syndrom, and is disabled under discrimination law. Her condition causes her a number of difficulties. She:
- has trouble identifying facial expressions and body language, and cannot easily read emotions;
- does not look at people’s faces when she is speaking to them;
- finds it hard to show an interest in what other people are saying and what is going on around her; and
- has trouble with normal conversation, and finds group discussions particularly difficult.
In October 2009, Ms Lowe registered for the civil service “fast stream”, which is a graduate entry scheme aimed at selecting future leaders of the civil service. The appraisal process is rigorous, due to the demanding nature of the job. In the year before Ms Lowe applied, only 3.2% of applicants were accepted.
On 5 March 2010, Ms Lowe attended an “assessment centre familiarisation session”. This was a half-day designed to ascertain what, if any, adjustments might be required for Ms Lowe at the real assessment day in light of her disability. A number of adjustments were agreed for Ms Lowe, including:
- extra time generally during the assessment day;
- that the assessors should be aware of her condition; and
- that she be given a few extra seconds to answer questions in two specific exercises, including the group discussion.
One adjustment rejected by the Cabinet Office was a request by Ms Lowe that, during the group exercise, the candidates should be asked questions in turn and in a specific order. The Cabinet Office determined that this was not a practicable adjustment, on the basis that, if it were made, it would be impossible to test the candidates against the competencies required.
Ms Lowe’s assessment day, at which the agreed adjustments were made, took place on 16 March 2010. The candidates were assessed against six competencies including “building productive relationships”. Ms Lowe’s score for this competency indicated automatic failure, and she had particular difficulties in the group exercise. Overall, she scored 14.17 out of a possible 24 marks for the competencies. To achieve success in 2010, a fast-stream candidate required at least 17.05 marks, so Ms Lowe was not recommended for appointment. She claimed disability discrimination, alleging that the Cabinet Office had failed in its duty to make reasonable adjustments.
The practices that Ms Lowe claimed placed her at a disadvantage were the Cabinet Office’s requirement for successful applicants to hold a high standard of communication skills, and its assessment of these skills by means of a group exercise and practical activities. She claimed that the Cabinet Office should have made some or all of several adjustments, including:
- excluding her from the group exercise (which would have required an adjustment to her scores);
- using a facilitator to ensure that she contributed to the group exercise;
- ignoring behaviour arising from her disability that was perceived as negative; and
- adjusting the assessment scores so that those qualities relating to communication skills were, in her case, given less weighting.
The tribunal had little doubt that the practices in question placed Ms Lowe at a substantial disadvantage as compared with those who are not disabled. However, this comparative disadvantage was also “at the heart” of the Cabinet Office’s defence. The Cabinet Office gave evidence that disabled candidates have to be assessed objectively against the competencies, and that no allowances are made for any disabled candidate in the sense of being afforded a lower pass mark or a lower standard for any single competency.
The tribunal accepted the Cabinet Office’s argument that, in assessing Ms Lowe, it was not reasonable to adjust either the competencies, or the way in which they were assessed, so as to inflate her score. It found that the recruitment process was challenging and designed to find high-quality candidates, and that removing the disadvantage that Ms Lowe’s condition led her to suffer in that process would destroy the essence of the exercise. The adjustments that formed the basis of Ms Lowe’s claim were not reasonable, and her claim failed.
- How to comply with the duty to make reasonable adjustments during the recruitment process Get practical guidance on disability discrimination with XpertHR's "how to" guide.
- Get more information on disability discrimination and recruitment issues with the XpertHR FAQs section:
- In an interview what steps must an employer take to accommodate a disabled candidate for a job?
- Does an unsuccessful job applicant require concrete evidence to prove that he or she was discriminated against?
- In what circumstances can an employer lawfully reject a disabled job applicant for reasons of his or her disability?