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###Employment : Equality Act - Asperger's Syndrome - Reasonable Adjustments and Disability Discrimination


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Hello everyone,

 

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.

 

“We have considered, if necessary, whether we would be able to make reasonable adjustments to accommodate some body with this disability in the role of Business Design Project Officer. We have concluded that it would be unlikely as the role demands competency in several areas but that someone with (his) disability may find difficult...”
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.

Edited by leedsguy
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What was the position you applied for, and how integral to that position were the skills that you were marked down on?

And how much scrutiny was given to the effects of your disability during the interview stage?

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What was the position you applied for, and how integral to that position were the skills that you were marked down on?

And how much scrutiny was given to the effects of your disability during the interview stage?

 

Hi RachelMD thanks for your reply.

 

Position was for an Applied Psychologist within the Civil Service. This was primarily an academic type role, and the area matched precisely with my particular interests in terms of areas of research and theories etc.In the interview it was explained it operated somewhat like a consultancy service to other departments within Civil Service. So presumably a "customer" would have some need, then it would be up to the employee in the position to perform whatever academic aspects were required, and to report back to the customer of the service being provided in terms of progress, and to clarify requirements and so on. These are not things I would find impossible, by any means - particularly if such contact was via email rather than face-to-face (could be a reasonable adjustment - and in fact I suspect the organisation operates via email anyway) but they are things I find difficult compared to the average person without my disability. So it is integral in so far as such contact with team members and external organisations would have related to the work I did. I would argue that evidencing good technical ability, in itself, proves an ability at these competencies.

 

It was also explained that the academic responsibilities rarely, if ever, involved recruiting participants, and engaging with research participants and so on - something I might have difficulty with and a reason why I do not often apply for many Research Assistant positions.

 

Questions asked and related skills were:-

 

Team work

Please tell us about a time when you worked effectively as part of a team, providing details about your role and how you worked with others to achieve the desired result.

Customer appreciation

Please tell us about a time when you had to work closely with a customer to clarify their requirements (e.g. research requirements or similar) and how you achieved this.

 

Please tell us about a time when you have worked with a particularly challenging customer and how you managed them to ensure you achieved the desired result.

 

No scrutiny whatsoever given to the effects of my disability during the interview. Perhaps I should have broached the issue in order to open a discussion into it, but I found doing so difficult due to my difficulties :( (irony). But this was partly why I asked the interview panel to be aware of my disability and its nature. Interview feedback did, however, state they felt the seniority of the position meant these skills were particularly important.

Edited by leedsguy
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And you've submitted a DD questionnaire, I think?

 

Well, I'd certainly say the lack of any scrutiny as to your condition, when you'd been transparent about it from the outset, seems suspicious..

I'd have thought they'd have wanted to discuss this with you in considerable detail.

I can't really comment on the specifics of the position obviously, as I don't know enough about it, but from what you've said it doesn't seem that they've seriously considered Reasonable Adjustments.

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Was waiting until tuesday to submit questionnaire in consideration of recent bank holidays etc.

 

These are the questions I have included at present (identifying names and dates removed).

 

3: Please set out the full duties for the post.

4: Please state whether you had any concerns regarding the Claimant’s ability to perform any of the duties set out in response to question 3 due to his Asperger’s Syndrome. If so please describe these fully.

5: How much time each week is it estimated an employee in the position would directly engage with team members and customers? What form is such contact primarily likely to take (email, telephone, face-to-face meeting)?

6: Please state every candidate who was interviewed for the position by reference to:

 

  1. their qualifications
  2. their relevant experience
  3. whether they had a disability and if so, its nature
  4. whether or not they were offered the post; and for what reasons

(Please note no personally identifiable/confidential data is requested.)

7: Would the Claimant have been offered an interview on the merits of their application alone, had they not requested a guaranteed interview for people with disabilities? Please give any details possible.

8: For what purpose were interview questions changed? If they were changed to better match questions other candidates were posed, how were the first set of questions derived, and why did they fail to match questions posed to other candidates in the first instance? Please offer as much detail as possible.

9: When the questions were changed, what was the justification for inclusion of the “working together” and “customer appreciation” competencies as opposed to other competencies, or the previous ones “welcome change” and “drive to deliver”? Please offer as much detail as possible.

10: Were all other candidates asked direct questions about the “working together” and “customer appreciation” competencies? If not which competencies were other candidates asked about?

11: Was it considered the Claimant’s lack of evidence of skills in “working together” and “customer appreciation” could be due to his Asperger’s Syndrome? Please provide details.

12: Was it considered the Claimant’s 10 minute presentation showed evidence of customer appreciation, given that feedback indicated the content was good and relevant?

13: Was it considered the Claimant may have difficulty effectively communicating his competencies in an interview compared with other candidates, as a result of his Asperger’s Syndrome? And difficulties with interaction evident at interview, would subside once they had adapted to the environment and gotten to know colleagues?

14: Had it been considered reasonable adjustments would be required in the position itself, as opposed to the interview alone, and that they might enable the Claimant to fulfil the role? If so, please provide details, and in each instance explain whether the adjustment was thought to be reasonable or suitable, and for what reasons.

15: Given sign language interpreters are offered at the interview stage, please explain what reasonable adjustments would be available for a candidate who was deaf and used sign language for the position? These include adjustments both at the interview stage in terms of assessing ability for the position, and in the position itself. If adjustments, not already referred to in question 14, would be available to a deaf person - why were similar adjustments not considered suitable or reasonable for the Claimant? Please give fully detailed reasons.

16: Has any training been given in respect of Autistic Spectrum Conditions within the organisation? If so, for what purpose was this training given? Is any such training anticipated in the near future?

17: Is disability considered a barrier to positions of seniority within (organisation)?

18: Was there anything the Claimant could have done to better explain their difficulties and requirements? Could the Claimant have taken any action that would have improved their chances of selection, in respect of their disability? If so, please provide details.

Edited by leedsguy
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  • 5 months later...

I am trying to support some people with High Function ASD to find suitable employment and found your post via google internet search.

 

Did you pusue this matter further - if so I would be interested in more details.

 

It is clear from your posts that you have many abilities that an employer should be able to utilise to their advantage and I hope you have been / are successful in finding a suitable position

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Took no further than sending the questionnaire, and receiving their response. I admit I have not fully read all the information they provided (just quickly skimmed), as I feel bad enough about my existence, that to read negative information about myself that I have no control over will only serve to make me feel more depressed or worse potentially suicidal.

 

One issue that put me off taking any further action was that it would have involved travelling to the nearest location to the employer to bring the issue to an employment tribunal. Chances are, even if it was easy travelling distance, I would have gone no further anyway. Having looked at their list of candidates, it is clear they selected the best one in terms of previous experience. I suspect at the time of the interview they already had a preferred candidate, the interview was merely a formality - and I had no real prospect of being employed anyway. That would tie up with the fact they told me I was last to be interviewed.

 

I hope that through posing the questions and them taking the time to respond, they have begun to consider issues which they might not have spent a great deal of time thinking about previously, and that in itself can only be beneficial.

 

In the mean time I did manage to get a job, but since sort of quit it. It was a case of minimum wage factory slave labour work, assessment consisted of a simple written English and pre-GCSE level mathematics test, with no interview. The assessor clearly did not understand the concept of BODMAS, and was interesting to see how one or two people tried to correct her, only to back down very quickly afterwards. The work was in a cake factory making Christmas cakes, temporary until Christmas, and the thing I did most was to press a mould onto icing. This was quite physically involved and I believe I got RSI. One of the supervisors talked down at (or perhaps better described as shouted at) employees in a rather negative and condescending manner - suppose it should have all been "water off a ducks back", but it antagonised me nonetheless. She also had a rather distinctive voice I found particularly difficult to understand, and although I quickly learned anything she said was not worth hearing, it still aggravated me. A fellow worker regularly poked fun at her voice behind her back. Another issue that bothered me was they expected us to do overtime willy nilly with no prior warning, and we had no say in the matter.

 

It came to a head when my partner wanted me to attend her friend's wedding over 300 miles away. I didn't really want to anyway (guess the reasons are obvious). This meant leaving on the Friday straight after work to travel, so I rushed to pack my bag Thursday evening before I went to sleep. The disarray meant I could not find my keys in the morning, as I placed them in a different location than usual. Eventually I found the keys and worked out I would be 10 minutes late to work. They had not yet provided me with a security pass so I would have been unable to gain access until someone let me in. I decided I couldn't deal with the hassle, that I did not want to spend another day hearing that woman's voice, and didn't bother going to work - nor the wedding. I did not have a phone number for the company. In fact, I understand their landline phone was broken and were operating from mobile phones. Even if I did I probably wouldn't have phoned anyway, as I wouldn't have wished to claim I was ill when I wasn't. They phoned numerous times at the beginning of next week, and I did not feel like answering. The job lasted nearly 2 weeks in all. If the wedding did not happen I might well still be going, just to get something to put on my CV (as it stands will omit it), but my wrists would be aching like crazy right now, and I would not be enjoying it.

 

Interestingly, the highlight of the factory job, for me, was the interaction with fellow workers. Even if I did come across to most of them as unusual/shy - and found interacting somewhat unnatural, stressful, and fraught with a couple of faux pas. The actual work itself I found it hard to take any pride in as it was so fast paced that I couldn't pay the attention to detail I would have liked. And to have some annoying woman pick minor faults when you have been doing the same thing all day long on thousands of cakes, and I doubt she would have been doing any better. When asked to switch to the task of putting jam on the cakes, she would shout "put them in the middle of the tray - that isn't the middle is it". I found the combined task of putting jam on to an appropriate consistency, and placing it onto a board quite difficult, so she took over. It amused me that her attempt at placing them in the centre was no better than mine, which amused me. Noone there to shout at her.

 

If I might be able to help in any way with your endeavour, or you have any further questions, don't be afraid to ask :)

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  • 1 year later...

I know this is an old thread now, but thought I might provide an update on employment in my life, as someone with Aspergers. It seems my last contribution to this thread almost became an epic novel, and wasn't well written. I'll keep this short.

 

I applied for a job at another Civil Service department, and passed a written test. As I expected, I failed at interview. The main reasons they gave were similar to those I have heard before, teamwork etc. After the rejection I emailed their diversity officer asking if I could get some work experience. I was given 6 weeks unpaid (travel expenses), and after that they took me on for a year. Have been there about 6 months now and it's been good. Although it is unusual to think that I only got there with positive action on part of some people within the organisation, and would struggle to get a minimum wage job after an interview elsewhere.

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