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Dismissing disabled employee for failing written exam not discriminatory

Employment Law & HR
BG Purple

As employers will be well aware the Equality Act 2010 provides, amongst other things, a framework for establishing disability discrimination. There are various different strands of disability discrimination, each with its own legal test and case law. Two particular strands have been giving Employment Tribunals a headache in recent years: failure to make reasonable adjustments and discrimination because of something “arising from” disability. Each person’s disability impacts them uniquely, and every workplace is different. As a result, each case that comes before an Employment Tribunal is fact-specific and it can sometimes be difficult for employers to draw fundamental guiding principles from the caselaw. A recent Employment Tribunal case involving these two types of disability discrimination neatly demonstrates this problem.

In Schofield v Manchester Airport Group plc, the Employment Tribunal had to consider if Manchester Airport Group (MAG) discriminated against Mr Schofield, whose learning difficulties constituted a disability under the 2010 Act, when it required that he pass a written test for a role as an aviation security officer, and dismissed him for failing it.

When an employer’s provision, criterion or practice puts disabled individuals at a considerable disadvantage in comparison with persons who are not disabled, the employer must take reasonable steps to avoid the disadvantage. A failure to do so constitutes discrimination on the grounds of a failure to make reasonable adjustments. Additionally, ‘discrimination arising from disability’ will occur where an employer treats an employee unfavourably because of something arising as a result of the latter’s disability. However, an employer can justify their actions if they can show that they were a proportionate means of achieving a legitimate aim.

On his first day, Mr Schofield told his trainer of his learning difficulties. Mr Schofield was offered various accommodations but did not pass the exam. He, like the other candidates, had unlimited time in the exam. He was allowed to re-sit the exam with further accommodations made, such as the invigilator offering to read questions out loud (which Mr Schofield did not accept). He failed again, and his employment was terminated, prompting Mr Schofield to bring forward claims of failure to make reasonable adjustments and discrimination arising from disability. He argued that MAG should have insisted on having someone read the questions aloud, should have offered to write down his answers for him and should have restricted the other candidates’ time so he had an advantage compared to them.

The Tribunal accepted that Mr Schofield’s learning difficulties disadvantaged him in comparison to his non-disabled peers. However, the Tribunal found that it was not reasonable for MAG to make further adjustments. Particularly, they found that restricting other candidates’ time would have been counter to the Equality Act as an employer is required to remove disadvantage, not create disadvantage for non-disabled workers. Furthermore, it was reasonable that MAG did not read out exam questions; they were not required to insist that the offer was taken up when Mr Schofield appeared to decline it. The tribunal didn’t accept MAG was required to provide Mr Schofield with a scribe as he had legible handwriting and unlimited time in which to write; it appeared that Mr Schofield failed regardless of his writing ability and that any further adjustments would be futile. Thus, MAG was not considered to breach its duty to make reasonable adjustments.

In relation to the discrimination arising from disability claim, the tribunal was satisfied that Mr Schofield’s dismissal was because of something arising from his disability, i.e. his inability to pass the test. However, it found that the discrimination was justified. MAG argued that there is a strong public interest in aviation security officers being competent and well-trained. The judge agreed and ruled that the dismissal was proportionate.

Considering that other recent cases have seemed to go further than ever before in placing obligations on employers in respect of reasonable adjustments, this ruling will come as a welcome signal of a tribunal’s willingness to set limits to obligations. Schofield highlights that questions of discrimination can be fickle and context-dependent, and this is especially clear in the arena of ‘discrimination arising from disability’ when ambiguous phrases such as the ‘public interest’ materialise. Despite the ruling favouring Mr Schofield’s employers, this case should remind employers to tread carefully when questions of disability discrimination arise. It is imperative to gather all the available information and explore all the available options – and if in doubt, play safe and contact LAW for guidance.

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