The Claimant was employed by the Respondent.  The Claimant was a qualified solicitor and suffered from dyslexia which was recognised as a disability for the purposes of the Disability Discrimination Act 1995.

The Claimant applied for a more senior post with the Respondent for which her application was unsuccessful.  She alleged that there was a failure to put reasonable adjustments into place when it came to the promotion competition and also that she had been subjected to Disability Discrimination as the appointed candidate was less qualified than the Claimant. As a result of this alleged discrimination the Claimant subsequently left her role and claimed constructive unfair dismissal.

In terms of the more senior position, it was found that there are many unexpected and unfamiliar challenges to the job and there would be little, or no notice given in dealing with those.  In terms of the allegations of failure to make reasonable adjustments, these ranged from the fact that the Claimant requested 30-45 minutes to review the questions in advance of the interview - which was rejected and she also complained that the interviewers had not undergone the awareness training run by Employers for Disability and that any other training they may have received was not an effective substitute.

The Respondent dealt with these complaints stating that dyslexia awareness training had been given and that the Claimant had been given 15 minutes before the interview to review the questions – this had been agreed with the Claimant at the time.  A Chartered Occupational Psychologist did advise the respondent in terms of the adjustments to be made and he outlined that there should be additional time to answer questions and that there should be a written copy of the questions given prior to interview.  There was no indication as to how long the applicant should be given to review those questions.

As a result of the recommendations there were a series of adjustments such as allowing the claimant an extra 15 minutes for the interview; she could request a 5-minute break in the interview; she was given 10 minutes for a presentation rather than 5, and there was a detailed introduction given and was also provided in writing.

The Claimant was not successful in the interview as she only received 5 marks in questions 5 and 6 when the pass mark for each question was 6. The argument that a less qualified candidate had been appointed was not accepted by the Tribunal considering that there was never any requirement for a legal qualification and only two years’ experience was required.

The Claimant stated that the truth of the matter was that some members of the panel had already formed a view that she could not take on the job as she was dyslexic, yet she did not state specifically which members held this view or on what basis they would hold that view.   Accordingly, the arguments based upon disability discrimination were dismissed as there were reasonable adjustments made and the Claimant was unable to show less favourable treatment when it came to the scoring exercise.

As for the constructive dismissal claim, it must be noted that the resignation came three months after a letter had been sent to the Claimant about her grievance which she had accepted was objectively reasonable.  Furthermore, the resignation had come after she had accepted a new job.   For this reason, it did not meet the criteria required in Western Excavating and was a resignation rather than a dismissal.

Practical Lessons

This case demonstrates the need to ensure that there is a proper basis for reasonable adjustments being made.  The respondent in this case had followed the expert advice that they had been given and they were able to stand over the decisions that they had made.  The failure to get the promotion was a catalyst for many other issues relating to grievances and resignation.  However, the fact that the initial point was dealt with correctly meant that the respondent was able to successful defend the Tribunal action taken.

NI Tribunal decisions are available on the OITFET website:http://www.employmenttribunalsni.co.uk/

For more information on making reasonable adjustments for disabled employees and applicants see our Guide for Employers in Making Reasonable Adjustments.