In the UK today it is estimated that around 1 in 7 people are neurodivergent which means that their brain can function, learn and interpret information in a different way. Neurodivergence includes Autism, ADHD, Dyslexia and Dyspraxia. Being neurodivergent will normally amount to a disability under the Equality Act 2010 so it is important for employers to consider any reasonable adjustments that may need to be made to the recruitment process.
The recent case of Meier v BT in Northern Ireland highlights the dangers for employers in requiring all applicants to take tests without considering how those with a “hidden” neurodivergent disability may be disadvantaged.
Mr Meier has Asperger’s syndrome, dyslexia and dyspraxia and an above average IQ and a 2:1 degree in Computer Science. He applied for a job with BT under their Graduate Recruitment Scheme which offered a guaranteed interview for disabled applicants who met the minimum job requirements. Mr Meier confirmed in his application that he had a disability but due to BT’s internal processes, the recruitment team were not made aware of this. Mr Meier scored low on the Situational Strengths Test and was unsuccessful in his application rejection from the process. He complained that the test was not an appropriate way to test someone with Asperger’s and asked BT to make reasonable adjustments to allow him to progress in the recruitment process. They refused arguing that the test formed an essential part of the minimum requirements and that he should have contacted them in relation to his disability to suggest adjustments.
Mr Meier successfully brought a claim for disability discrimination on the grounds that BT failed to make reasonable adjustments to their recruitment process to account for his disability. The Tribunal held that BT had sufficient knowledge of Mr Meier’s disability and the fact that this would place him at a substantial disadvantage, and they failed to proactively offer to or make reasonable adjustments. They found that it would have been reasonable for BT to disregard Mr Meier’s scores and to allow him to pass to the interview stage to assess his suitability. He was thereby awarded £12,500 for injury to feelings and £4,538 for loss of earnings.
BT unsuccessfully appealed. The Court of Appeal held that BT had failed to take into account the information on their application forms in order to ascertain whether their duty to make reasonable adjustments was triggered. They confirmed that this duty lay with the employer and applies to all stages of the employment process, including recruitment.
As this decision is from the Court of Appeal in Northern Ireland it will be of note to the courts and tribunals in Great Britain but is non-binding. However, it still serves as an important reminder for employers that when recruiting new employees, they should be proactive in identifying possible hidden barriers for candidates with a disability. Creating an inclusive recruitment process which allows neurodivergent individuals to showcase their talents may entail offering alternative application methods or training interviewers to recognise their unconscious bias. This case has also highlighted the need to ensure that any disclosure of disability as part of an application form is communicated to the right people so that reasonable adjustments can be considered.
If you have any questions about your legal obligations during the recruitment stage or about how you can ensure your employment process is inclusive, contact your dedicated Employment Solicitor.