Tribunal - compensation/remedy? - Disability discrimination, not offered job.

[leedsguy]

Further to my recent post in this section of the forums, am still waiting for a response to the Equality Act information request regarding disability discrimination after a recent interview.

 

I have looked at the ET1 form, and it asks what compensation or remedy you are seeking. I am unsure what is suitable to put into this section of the form, as I have not been offered a job and therefore have no concrete losses other than my travel expenses to the interview, which were not met, and it was over 100 miles away. I would like a job, but I would guess this is not going to happen as they have already decided who to appoint. Clearly I can't put random figures on there. Is there some accepted standard in such situations?

 

If I was to take action it would be more for the fact a decision had been made in a tribunal that such treatment is against the law - and hopefully the decision would help me and other people with similar disabilities when it comes to seeking work and enforcing their legal rights. I am particularly interested in knowing, does an Employment Tribunal case in itself set a binding legal precedent, or do only Employment Appeal Tribunal cases?

 

Thanks in advance for any info,

Edited May 18, 2011 by leedsguy

[leedsguy]

Bump.

[Nystagmite]

How exactly are you going to prove this was discrimination? There may be many reasons why you weren't offered the job.

[leedsguy]

You make a good point, although I was more interested in what remedy I am likely to seek.

 

My understanding of the law is that the Equality Act makes it illegal to treat someone with Disability less fairly due to their disability. So I do not need to prove I was not offered a job because of my disability - merely that I was treat less fairly due to my disability, and that reasonable adjustments were not made or considered. (I could have worded the original post better with a bit more forethought.)

 

In my case I have Asperger's Syndrome. I requested adjustments at interview of provision of questions prior to interview and interviewers to be made aware. One set of questions was provided, then a few days later the questions were changed and the new questions asked about abilities which someone with my condition would be expected to find difficult, not covered in the previous set of questions. The feedback from the interview was that I was great technically, but the abilities I would be expected to find difficult due to my disability, Customer Service, and Team-work, were the reasons for not offering a position. These competencies relate directly to my disability. The clear and provable change of questions, and justification for non-appointment seems very much like a constructive attempt to exclude me.

 

A more concrete example of discrimination in such a manner is if a person were a wheelchair user, to mark them down in the interview because they may be unable to travel to other locations - or to assert that they must be able to drive, when in fact they may be able to use public transport (a reasonable adjustment). This would also be illegal.

 

Also, just to add, that if I was who I am without my disability, I would have more than likely been the perfect candidate for the job. I do not feel my disability should be a barrier to employment. I have never managed to secure a paid job and am soon to be 31. Pretty depressing.

 

Looks like some sort of answer to my question is here, after a bit of googling etclaims dot co.uk/2009/02/how-much-will-i-get-if-i-win/ I guess the claim would be for "injury to feelings". Difficult to put a figure on that when the same happens everywhere else and I get £0.

Edited May 22, 2011 by leedsguy
last 2 paragraphs added

[Bigredbus]

Hi,

 

If you were to proceed to an ET, what outcome would you like to see happening? (If I may ask you?)

[leedsguy]

Regarding outcome desired of ET.

 

Acceptance of wrongdoing. Commitment to improvements. Offer of a job (unlikely/improbable). Compensation for injury to feelings would be nice, but I experience injury to feelings almost every day as a result of my disability anyway. If they had to pay compensation I hope it would send the message they have done wrong and must make a commitment to improve, and would hopefully give hope to others with similar disabilities that they can successfully take action in similar circumstances also. Bringing some clarity to interpretation of the Equality Act in regard to hidden disabilities like Asperger's Syndrome, would also be beneficial, I feel.

 

Have I suffered "injury to feelings"? Well I felt I was ideally suited to this position. It seemed the best possible job for me that I have ever seen, perfectly matching my University qualifications, and area of final year projects - and therefore research interests. When I was offered an interview they seemed accommodating, offering interview questions as an adjustment and being reassuring. I recognised the employer was committed to equality, including offering assistance such as sign language interpreters (if required) when they offered me an interview. Also 2 posts were offered for the same job description. I couldn't help but feel somewhat more hopeful than I had with other jobs that this was *the* one, and allowances would be made for my disability. I clearly had *much* better knowledge of one side of job-relevant technical issues than the interviewers did, and I feel I would therefore have been able to integrate two technical perspectives relevant to the job far better than they could. To be told I was good in terms of technical ability, and knocked back for reasons directly related to my disability is particularly disheartening. Particularly when this was a well paid and highly skilled job, and I have no doubts that had I not had my disability I would have been the perfect candidate. I genuinely cannot say that about any other job I have ever applied for. I have to accept my disability and inability to act in ways others without my disability do naturally, and that able people naturally discriminate against me by looking unfavourably upon me in regards to this - and that in itself injures my feelings also - but in many instances no law has been broken. The Equality Act legislation was specifically made to prevent such discrimination when it comes to employment, and I strongly feel the law should be upheld - and that the law is my only possible avenue into paid work, given I am nearly 31 and have never had a paid job despite strong efforts otherwise and a First Class Honours degree and a Masters.

Edited May 23, 2011 by leedsguy

[honeybee13]

Hello there leedsguy. Have you spoken to the EHRC [i think that's right, been a long day] the discrimination and human rights people about this? I believe they have a good helpline and could be able to tell you if you have a case.

 

My best, HB

[phoenix11]

The feedback from the interview was that I was great technically, but the abilities I would be expected to find difficult due to my disability, Customer Service, and Team-work, were the reasons for not offering a position.

 

Did they give this to you verbally or in writing?

 

You do need to talk to someone as honeybee suggests because it may not just be a question of claiming for your injured feelings. Is there the consideration of loss of earnings???

[leedsguy]

Did they give this to you verbally or in writing?

 

Exact feedback in writing by email was:

 

Candidate was technically strong and showed some good insights into (job) related issues, his technical presentation was well researched and well delivered.

 

(Name of candidate) lacked evidence of some of the key competencies needed for such a senior position, notably team working and customer appreciation.

 

So they did not categorically state it was due to my disability (did not intend to give that impression and apologise if I did), but given my description of my disability, they could reasonably have expected I would have difficulty in those areas. If seniority was as important as they state then I do wonder why they offered an interview, and why they offered sign language interpreters for the interview if required, as a deaf person would have the same types of difficulties unless the customer or team-members also use sign language.

 

You do need to talk to someone as honeybee suggests because it may not just be a question of claiming for your injured feelings. Is there the consideration of loss of earnings???

 

Well even though I was considered less fairly for the position, it may still be that another person would have been better for the job. I accept that a disability isn't a golden ticket into a job regardless of your ability and how you compare with other candidates for the position. So there is no lost earnings. Claims for lost earnings only seem to relate to when a job is lost from what I have seen. This job was for a good wage, the highest I have ever been interviewed for, £34k. I struggle to get even minimum wage jobs, mind, and have never been offered a paid job. I got through University okay though without any adjustments.

Edited May 25, 2011 by leedsguy

[teaboy2]

I have to say that i believe you have a good case here. Asperger Syndrome effect a person ability to interact on a social level. However, it does not prevent a person from providing customer service, as must forms of customer service is based on knowledge of products, and company procedures, and not random social interactions (sure customers will be random but over time the questions will be repetitive). Team work is also not effected by limited social interactions as team work is about working together to meet targets and fulfill goals. As for social interaction with other members of staff - well am pretty certain given that they have knowledge of your condition, they would be more than understanding about it and your condition would therefore not effect how well the team works together. Team work is more about doing what is asked and/or needed to be done.

 

The fact they changed the questions specifically to questions relating to your condition is a sign to me that they were apprehensive towards employing you from the outset and likely made their decision prior to interviewing you.

 

I think a letter from your doctor backing up what i said in my first paragraph would be useful as evidence. As it would contradict the view that they had given as to your ability to perform in customer service and in team work instances.

 

I admit this one is going to be tough but i think you have a good case for discrimination.

 

But saying that the employer is a business and they will therefore employ people that are more suited to the job as its not beneficial for them to take on employees that may have difficulties. But i do not believe that defense would not apply to your case, as my above reasons make it clear as to why i do not believe your disability would prevent you from providing good customer service and/or working as a member of a team. Are quiet people that are shy and say little not able to provide customer service and/or work as a team? No, they are just as able to as anyone else and so are you. If anything such a position would actually help you with your condition in the long term.

 

Take it from someone that has worked in retail and sales for over a decade and now has his own company, i also struggle with socializing due to problems with anxiety issues from time to time, but if i can do it then am sure you can too.

Edited May 25, 2011 by teaboy2
minor wording errors, haven't been to bed yet lol

[leedsguy]

Yes it has crossed my mind that even though I do not compare well with others, perhaps no reasonable adjustments were in fact required and if appointed they'd have found that out! What better for an employer than a disability that requires no adjustments whatsoever, other than a little bit of consideration! And I strongly agree, what I need to help me with any difficulties I have is a job!

 

Problem I seem to face is employers everywhere apply the same types of standards regarding interactions, and I always seem to end up not being selected for anything.

 

I am currently composing an email to the EHRC helpline as suggested by honeybee13.

Edited May 25, 2011 by leedsguy

[teaboy2]

Yes it has crossed my mind that even though I do not compare well with others, perhaps no reasonable adjustments were in fact required and if appointed they'd have found that out! What better for an employer than a disability that requires no adjustments whatsoever, other than a little bit of consideration! And I strongly agree, what I need to help me with any difficulties I have is a job!

 

Problem I seem to face is employers everywhere apply the same types of standards regarding interactions, and I always seem to end up not being selected for anything.

 

I am currently composing an email to the EHRC helpline as suggested by honeybee13.

 

I agreed 100% most people seem to class social interactions as being an inability to perform, when its not. Its more about being able to interact with others in random conversation on random subjects. People interacting socially in a conversation of a subject they know little or nothing about are always the ones that provide less input in the conversation. So where is the difference between the person that knows little of the subject being discussed and yourself? There isn't any. But i bet when someone is talking about something that is an interest of yours, you have no problem interacting with them do you? Just like the person that had little knowledge of a subject being discussed (and therefore has little input in such conversations) would have no problem talking about a subject they do know about. The same applies for when being asked about products etc, you will have an interest in the products since you need to have that knowledge of the product due to your job - So off course the products will be an interest of yours, so you will have no problem talking about them with customers or answering their questions about the products.

 

As you said people simply lack in consideration.

 

How do the following prevent you doing the job?

 

Social interaction

 

Further information: Asperger syndrome and interpersonal relationships

The lack of demonstrated empathy is possibly the most dysfunctional aspect of Asperger syndrome.[4] Individuals with AS experience difficulties in basic elements of social interaction, which may include a failure to develop friendships or to seek shared enjoyments or achievements with others (for example, showing others objects of interest), a lack of social or emotional reciprocity, and impaired nonverbal behaviors in areas such as eye contact, facial expression, posture, and gesture.[3]

Unlike those with autism, people with AS are not usually withdrawn around others; they approach others, even if awkwardly. For example, a person with AS may engage in a one-sided, long-winded speech about a favorite topic, while misunderstanding or not recognizing the listener's feelings or reactions, such as a need for privacy or haste to leave.[7] This social awkwardness has been called "active but odd".[3] This failure to react appropriately to social interaction may appear as disregard for other people's feelings, and may come across as insensitive.[7] However, not all individuals with AS will approach others. Some of them may even display selective mutism, speaking not at all to most people and excessively to specific people. Some may choose to talk only to people they like.[26]

It doesn't! As it says you have no problem approaching people and talking to people. Edited May 25, 2011 by teaboy2

[phoenix11]

The one little bit which may be their 'get-out' is: (Name of candidate) lacked evidence of some of the key competencies needed for such a senior position, notably team working and customer appreciation.

 

What this means is that you could not demonstrate that you had experience of these aspsects to the role. So, it goes back to the job spec and example questions - was there anything that suggested a candidate needed to demonstrate such experience?

 

And then, was the position indicated as being a senior position which would require prior, evidenced experience?

 

If there was no such information or requirement, then I'd tentatively suggest you may have something to go on.

[leedsguy]

What this means is that you could not demonstrate that you had experience of these aspsects to the role. So, it goes back to the job spec and example questions - was there anything that suggested a candidate needed to demonstrate such experience?

 

Well all jobs demand good team work skills and excellent communication skills as default qualities. Even if the job involves no interaction with others. It is something the National Autistic Society has highlighted as an issue, but it seems to continue regardless. Makes me feel like jumping into a river or something if I can never get any kind of employment because of my disability. I *did* demonstrate experience of these competencies in response to interview questions, but their expectations related to a person without my disability - so it is no surprise I am at substantial disadvantage. Back to the Equality Act, and a quote from some EHRC guidance...

 

An employer must not do something which has (or would have) a worse impact on you and on other people who share your particular protected characteristic than on people who do not have that characteristic. Unless the employer can show that what they have done, or intend to do, is objectively justified, this will be indirect discrimination. ‘Doing something’ can include making a decision, or applying a rule or way of doing things.

 

For example:

A job involves travelling to lots of different places to see clients. An employer says that, to get the job, the successful applicant has to be able to drive. This may stop some disabled people applying if they cannot drive. But there may be other perfectly good ways of getting from one appointment to another, which disabled people who cannot themselves drive could use. So the employer needs to show that a requirement to be able to drive is objectively justified, or they may be discriminating unlawfully against the people who cannot drive because of their disability.

http://www.equalityhumanrights.com/uploaded_files/Equality%20Bill/employees_applying_for_a_job.doc

 

So for example, a good objective justification for needing to drive is where the job being applied for is as a taxi driver, or lorry driver. Or for example that the locations are so remote that use of public transport is unlikely to be possible. E.g. where driving is absolutely essential. I won't rant on redefining how these rules might apply to someone with my type of disability I expected the employers to be able to figure it out, so I'm sure everyone else can

 

And then, was the position indicated as being a senior position which would require prior, evidenced experience?

 

If there was no such information or requirement, then I'd tentatively suggest you may have something to go on.

Nothing suggested the post was senior, other than the £34k wage - but there are other reasons I thought the wage was high such as the location, and reasons probably best not gone into on a public forum relating to the nature of the work. The job description did NOT state it was senior. They requested experience of work in a certain area, for which I put forward my University studies. The main requirement they had was a 1 or 2:1 degree in a certain subject was essential (which I have) and that a relevant masters would be desirable (which I also had). I would not have applied if I did not feel I was suitable for the position, and I question why they offered an interview if they did not believe I met the essential criteria even though I requested an interview under the guaranteed interview for disabled people scheme, as I did fill in the application form honestly and made no balls about my difficulties.

[Atlas01]

Hmn, My concern here is the post comes across as you focusing 100% on the disability and not on not getting the job through the fact the employer will be stating your were treated as favourably as every other candidate who failed to get the job because the successful candidate came across much better on the day.

 

The regs around disability discrimination centre on unlawful refusal of work, it is not unlawful to refuse a disabled candidate a job because someone was better, it is unlawful to refuse on the grounds of disability

 

How will you demonstrate that the panel failed to take account of it to the extent that you would have been the best candidate if they had done so?

 

I'm not trying to poo-poo your issue at all, just give you the proverbial slap over the head to remind you to consider the employers defence tactics as much as you consider your side

 

We have hundreds of posts "unfair interview, i didn't get the job" by people here with no disabilities, non of them can prove it either when asked how much evidence they had. You may need somehow to evidence how your separate than many other unsuccessful candidates, who post here ****ed at not getting jobs when in their opinion they were by far the best person for the job. Problem is it's pretty pointless to go for an interview if you don't think your the best person for the job

 

good luck

Edited May 25, 2011 by Atlas01
too lazy to add comma's so i'll just apologise here

[leedsguy]

Hmn, My concern here is the post comes across as you focusing 100% on the disability and not on not getting the job through the fact the employer will be stating your were treated as favourably as every other candidate who failed to get the job because the successful candidate came across much better on the day.

 

I feel you may have only read the first post. I admit the title of the thread was ill thought out, but as stated above in the quoted feedback I was refused work on the grounds of disability - even though the employer did not explicitly state so. But similar feedback for a disabled person could have been "The candidate failed to provide evidence of ability to travel to various locations as required by the job." That does not explicitly posit their disability as the justification, and such a justification may be considered acceptable to discriminate between able-bodied candidates for certain jobs as able bodied candidates may well differ on their ability and experience in this area. One example here is knowledge of the local area.

 

I'm not trying to poo-poo your issue at all, just give you the proverbial slap over the head to remind you to consider the employers defence tactics as much as you consider your side

Rightly so, I would only take it on to tribunal if I thought I could argue my side well against their possible arguments. I'm not giving it the cry baby "I didn't get the job, wah wah", honest I would accept if I was not offered the job, if they did not use competencies related to my disability as justification. I have received many such rejections being near 31 and never having had any paid job, and I feel this one has the most merit to take to tribunal.

 

Problem is it's pretty pointless to go for an interview if you don't think your the best person for the job

Unless perhaps it is a minimum wage job. As said above I genuinely felt this job was the absolute best possible fit to my interests, knowledge, and experience - and I feel this is reflected in the first sentence of the feedback offered by the employer which suggests otherwise I would have been good for the job.

 

good luck

I thank you and all others in the thread for providing ideas and insights .

[leedsguy]

Having thought in depth about the issues and considered some of the points above, I think the case hinges on one issue. The issue is whether the employer can "objectively justify" the requirement that the employee must be good at team-work and customer appreciation skills. My focus would therefore need to be on proving that it can not be objectively justified.

Edited May 26, 2011 by leedsguy

[Atlas01]

It's nice to see such a considered response to my points, i'd agree with you that they need to do this but without exact detail of what those parts require i do see them defending this (e.g no point in applying to be a taxi driver if a disability seriously inhibits your ability to drive in the way a taxi driver does as you say)

 

At that pay level it's senior management level where this may be a fundamental part of the role (e.g. managing staff requires a high level of team work abilities by the manager)

 

Have you considered trying to jump on the ladder further down, this way your talents would shine through and an interviewing employer would know you.

 

Although the law protects disabled workers employers simply don't want to take the chance in reality and see you as potential baggage they can't dispose of once employed due to your disability, crass i know but that's simply the way it is. The proverb of grandmother and eggs spring to mind here, no doubt your more aware of this than anyone

 

Keeping chipping away

[leedsguy]

At that pay level it's senior management level where this may be a fundamental part of the role (e.g. managing staff requires a high level of team work abilities by the manager)

 

There was no management/managing staff involved in the role whatsoever. I would never apply for a management role as I know it's not something I am capable of. The job was primarily providing a consultancy service to other Government departments, so would have involved dealing with customers etc and interacting with people who are quite high up the pecking order within civil service - and this is the only reason I can see they consider the position as "senior". Presumably there would have been some level of interacting with other employees who may be, for example, working on the same project. Like I say there are other reasons the wage was likely to be as it was, which would rather not detail on public forums.

 

Have you considered trying to jump on the ladder further down, this way your talents would shine through and an interviewing employer would know you.

 

Problem is all employers consider these qualities important, no matter what the role or level of the role. With the same standards applying to everything I am always excluded. I apply for anything and everything that I consider may be suitable based on the job description. I'm even rejected for things like shelf stacking at Poundland, presumably because I do not present well in interviews due to my difficulties. Struggle as I might, Poundland wouldn't even offer any interview feedback. I genuinely cannot get anything, able to get a First Class honours degree, but not able to get a job for reasons beyond my control. At nearly 31 I should have had at least one paid job by now, but I haven't and it does not seem like I am ever going to get anything. It all leaves me tending towards feeling somewhat suicidal. Getting rejected time after time makes job searching and attending interviews feel like a waste of time, effort, and money now most employers will not meet travel expenses.

Edited May 26, 2011 by leedsguy

[phoenix11]

Leedsguy - now that you've posted that extra bit of info, is it possible that the feedback you received is the problem - ie - they cannot communicate?

 

The reason I think this might be the case is that they have left out what they know and assume (erroneously) that you would realise - essentially that as you would be providing a consultancy service to those 'higher up' in the Civil Service, they need to employ someone who can demonstrate they've dealt with that kind of client in the past. They would need someone who not only knew their product/service, but who can also show they have delivered to tough customers before.

 

I do understand how difficult and demoralising it is - my own son is a older than yourself, with an ASD condition and is just on the long-term unemployed heap. However, you do have a lot going for you and I would certainly try to avoid applying to places such as Poundland - you'd scare the pants off them.

 

Ideally you need to find an employer who will take you on to train as a consultant - not in the technical stuff, but in the negotiating and delivery training.

 

Without knowing what your specialism is, are there any companies where you live which might be open to doing that, even for a modest salary so you can get your foot in the door.

 

There was a Swedish company who had a UK part of their company who specialised in taking people with Asperger's - but as usual, my pea-brain memory can't dredge up any more info than that.

 

I'll try to find it for you even if only for interest.

[phoenix11]

Gosh - thank goodness for Google - here you go:

 

This link to another forum gives the name of two companies:

 

http://www.aspergertechnical.org.uk/discuss/topic24.html

 

 

Maybe even just get in touch with someone there to see if they have any ideas on how you can get into the job market - I'm sure that any company like this would be far more helpful than a local 99p store.

 

good luck - I really admire the way you handle yourself and keep trying to get on - so I hope that something can come of all of this.