Firstly I would like to state my post is a request for opinions on matters relating to the likely interpretation of the Equality Act law in terms of my situation, and consequently the potential for an Employment Tribunal to be successful or not. I was particularly hoping someone with experience of employment law issues in disability discrimination, in particular Autistic Spectrum Disorders, would be able to offer some advice. The law is open to a large amount of interpretation, and Autistic conditions are largely misunderstood and misinterpreted by the general population - making this issue somewhat more complex than normal.
I have Asperger's Syndrome. I have no doubts whatsoever this will be considered a disability under section 6 and the relevant schedule 1 of the act. Cases such as Hewett V Motorola and Isles V Ealing Council both establish this to be the case (was going to link to these but cannot add links due to having under 20 posts.)
I recently applied for a job under a guaranteed interview for disabled people scheme. As reasonable adjustments at interview I requested that I be provided the questions in writing prior to interview, and the interview panel be made aware of my condition and the nature of my difficulties. These requests were met and a set of questions provided. Although shortly after a new set of questions replacing the old set were provided, and the new set included questions on competencies not covered in the original questions, including team work and customer appreciation. As my condition primarily affects social interaction and communication, it is obvious I would have difficulties with these skills.
Post interview feedback indicated that while my 10 minute technical presentation and technical skills for the position were considered good, lack of evidence of team work and customer appreciation were the two reasons for which I was rejected. I would argue that a reasonable adjustment would have been to consider these skills as meeting expectations, assuming reasonable adjustments could be made in the position itself to accommodate those difficulties. This is based on a tribunal recommendation in the case of Hewett V Motorola - Hewett was working for Motorola and given an appraisal ranking of SI (Some Improvement) as he was criticised as being over-sensitive to banter which is a result of his disability. One recommendation of the employment tribunal was that a reasonable adjustment would have been to modify his appraisal ranking to Meeting Expectations, due to this issue relating to his disability.
In the case of Isles V Ealing Council see the quote below. However, one difference between that case and my case is the respondent explicitly referred to his disability when suggesting reasonable adjustments could not be made relating to certain competencies in regard of his condition.
I would infer from this that in recruitment a reasonable adjustment would be to consider features relating to a disability as meeting expectations, assuming reasonable adjustments can be made to accommodate those difficulties. For example, a profoundly deaf person applying for a job as a sound engineer may not be able to perform the duties required of the job. Whereas a deaf person applying for a job in an office may benefit from a sign language interpreter and still be able to carry out duties required of the job.
Then we move on to consideration of what is a reasonable adjustment. For example, in many organisations a sign language interpreter may not be considered a reasonable adjustment, due to the organisation's resources and size. I would argue that if an employer offers to provide a sign language interpreter at interview at their cost (as they did in this instance), they are aware of the difficulties likely to be encountered by a deaf person - and are able to meet adjustments required - and consider such adjustments reasonable within their organisation. Clearly my needs are different to that of a deaf sign language user. However, I would argue the effect of my condition in relation to colleagues and customers is likely to be similar. If a deaf person were posed questions on these issues, they too might find offering good examples of these skills at interview difficult compared with a candidate without their difficulties.
I therefore would argue that...
My disability would be considered a disability.
Changing questions is suggestive of indirect discrimination under S19.
Refusal to offer a position on the basis of competencies relating to disability when reasonable adjustments were possible, is suggestive of direct discrimination under S13.
Reasonable adjustments, required under S20, for the position itself in relation to my disability were not adequately considered.
Adjustments as required were reasonable and other similar adjustments were considered reasonable by the employer.
A reasonable adjustment at interview would have been to consider competencies relating to difficulties arising from my disability as meeting expectations, so long as those competencies would be likely to be overcome with a reasonable adjustment.
I therefore feel, dependent on responses to questions in response to my request for information under section 138 an Employment tribunal would be justified. Even though I would likely find the process difficult due to my disability and would have no legal support as legal aid is not possible and I have little money.
My aim is not to procure compensation, but to try help prevent people with atypical neurological conditions like Asperger Syndrome, having to endure discrimination - and loss of dignity through repeated unemployment despite good ability to do certain jobs. And if not to raise awareness of such conditions, at least in the organisation to which I applied. And also maybe to set some sort of precedent about the legal status of the Equality Act in relation to such situations. Would an employment tribunal case set a binding legal precedent for future cases? I am nearly 31 and have never managed to get a paid job of any kind, and I think this is disgusting when I have a First Class Honours degree and a Masters - I am clearly of some benefit in the work place but continually hit this brick wall with decisions not to employ me being consistently related to my condition. Even in unskilled positions where you would not expect adept ability at team work to be particularly important like shelf stacking. I am fed up of being treated in this manner and really want some way to work to earn my own money, even if it is for minimum wage. Had I been interviewed for University and subject to the same assessments I would likely have never achieved a First Class degree.
I just want to be considered in terms of my ability to do the job (which the big part is the technical side) without being hindered by my disability when compared to other candidates. It is clear this is happening when I am rejected due to reasons relating to my disability.
Thanks in advance for any help. Particularly those with knowledge of employment law issues in disability discrimination - or knowledge of disabilities such as Autistic Spectrum Disorders, like Asperger's Syndrome.