Positive action in recruitment is permissible only in limited circumstances: employers are allowed to take certain positive steps to help individuals who are disadvantaged by a protected characteristic (including disability). However, it is not lawful to recruit someone simply because they possess a protected characteristic; the exception to this is where it is a general occupational requirement of the job to employ a woman or someone with a specific characteristic.
An example of this would be an organisation for deaf people seeking to legitimately employ a deaf person who uses British Sign Language (BSL) to work as a counsellor to other deaf people whose first or preferred language is BSL. A recent case highlights the limits to the general occupational requirement exception and the pitfalls of an employer recruiting someone because of a particular disability.
Mr Patel was dyslexic. He struggled with various issues as a result, including difficulties in concentrating, absorbing and recalling information, processing information at speed, reading and multi-tasking. He took four years to pass his A-levels but obtained a distinction in an MSc Management course at university. He made it clear to the company which employed him as an Accountant Assistant, Lucy A Raymond & Sons Limited, that he was dyslexic at his interview and this was a major, positive factor in him being recruited. The employer’s founder and managing director, Mrs Williams, had close family members with dyslexia and wished to use him as an example to show others with dyslexia what they could achieve.
Mrs Williams relied on her personal experience of people with dyslexia and waived him through the interview process, despite him not meeting the qualifications, skills and experience required for the role. The ET found that Mrs Williams “viewed the condition entirely through the lens of her personal experience.” She did not enquire at the interview what the business could do to address any of his needs, neither was he asked by those training him, despite them also knowing he was dyslexic. As a further complication, after only one day at work, the government announced a lockdown, meaning Mr Patel had to carry on his training and work from home.
Perhaps unsurprisingly, given he did not possess all of the requirements for the role, the employer began to develop concerns over Mr Patel’s work. After just one month of employment, Mr Patel was dismissed.
Mr Patel was called into a meeting which he believed was to discuss signing off on his training. This turned out to be a meeting to dismiss him. The letter confirming his dismissal was sent a month later and referred to a restructuring of the financial management and administration of the company, meaning the employee’s role had been replaced.
Mr Patel brought numerous claims against the employer in the Employment Tribunal including discrimination arising from disability in respect of his dismissal.
It was accepted that Mr Patel’s dyslexia amounted to a disability within the meaning of the Equality Act 2010 and that the mental struggles he encountered as a result of his dyslexia meet the requirements of the definition.
The Tribunal was critical of the employer’s attempt to dress up the reason for Mr Patel’s dismissal as the result of a restructure. It concluded that there was some evidence that a restructure was being considered by the employer but that this was not the key motivation for his dismissal. Instead, concerns about Mr Patel’s ability to do the job were found to be the main reason for his dismissal. The Tribunal found that his dyslexia placed him at an inherent disadvantage in being able to carry out the tasks required of him and that concerns around his performance related to the symptoms of his disability, such as speed and ability to follow instructions.
A key part of the evidence at the hearing was the admission from Mrs Williams that: “I had taken the wrong decision in giving a dyslexic person the job.” Perhaps unsurprisingly, this led the tribunal to find that Mr Patel had been discriminated against due to something (performance issues) arising from his disability and this had led to his dismissal.
However, in a salutary lesson, the employer was also heavily criticised in respect of other evidence, including:
- A lack of evidence: amongst other defects, there were no minutes of the dismissal meeting. This hampered the Tribunal’s efforts to establish what happened and hindered the employer’s ability defend itself.
- The dismissal letter was very brief and was only provided to Mr Patel a month after his dismissal, and at his request. The Tribunal found this to be further evidence of inconsistency in the employer’s account, and hindered its defence.
- The reasoning given in the dismissal letter was inconsistent with other evidence: the letter stated that Mr Patel’s performance was not an issue, but the witness evidence submitted by the employer suggested otherwise. In addition, the alleged performance shortcomings were not put to Mr Patel during his employment.
- The employer’s unfair exaggeration of Mr Patel’s shortcomings and behaviours: the Tribunal criticised the employer’s attempts to aggressively defend its position by suggesting the problems had resulted from Mr Patel’s own behaviour. The Tribunal found their assertions were exaggerated and some had been “bolstered after the event”.
This case is a useful reminder of the legal position in relation to positive discrimination, its exceptions and limitations. Well-intentioned employers wishing to create opportunities for individuals who suffer from particular disadvantages as a result of a protected characteristic will want to be mindful of the risks of recruitment aspirations back-firing. However benevolent the intentions, it is unlikely to work out well for either employer or employee if the first step taken is to waive the requirements of a role simply because the employer is sympathetic to the candidate’s struggles. Many positive action initiatives can and do succeed if handled properly and the Equality and Human Rights Commission Statutory Code of Practice provides helpful guidance. As always, please do contact us if it helps to discuss your business’s diversity aspirations.