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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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hi, I believe that employer (local Council) discriminated

Resolved Question:

hi,

I believe that employer (local Council) discriminated against my disability during recruitment process. Council has policy saying that every disabled candidate who meet essential criteria have to be invited for an interview... I have dyslexia, so its disability as per Equality Act 2010.

After complaining to the employer they admitted that some mistakes were made and they promised to avoid similar situations in the future. Saying that, they dismiss my claim of discrimination arguing that mistakes were done by inexperienced member of HR staff...

----
extract from formal reply:
"On investigation it was identified that the Recruitment Administrator failed to log your disability on to the recruitment system and advise the Recruiting Manager of your disability. As you will be aware the Recruitment and Selection Policy and Procedure states that the council “guarantees to interview all applicants with a disability who meet the criteria for a job vacancy and consider them on their disability. Due to the Recruiting Manager being unaware of your disability she did not apply the above policy although your application was given due consideration by the shortlisting panel. The reason you were not shortlisted was because you were assessed as not meeting the desirable criteria.

The MKC Recruitment and Selection Policies and Procedures states that “two trained panel members should be involved” for the purposes of shortlisting, however on investigation only one of the panel members had received appropriate training. This has been escalated to the Learning and Development Team and manager for action.

In conclusion MKC did fail to follow the Recruitment and Selection Policy and Procedure in reference to shortlisting an individual who has a disability. However, my conclusion is that this was not an intentional act but an administrative error".

----

In reply from recruiting manager I received information that I did not meet essential criteria due to not having experience in particular area. This was not part of person specification document for that post.

My case is for indirect discrimination and not making reasonable adjustments. I understand difficulties associated with it. I do not want to go to Tribunal if I can help, but I do want apologies acknowledging indirect discrimination.

I understand that i need to involve ACAS from now on if I wish to proceed further. I can not afford fees for tribunal if I wish to go forward, but I do not qualify for tribunal discount cos income of my partner... I am also a gay man, but in this case thats not the problem (I hope).

Can you advise, please? What steps to take? Is there any support something in lines of no win no fee I could get? Would that pay tribunal fees?

oh, can I just add that I work for company own by the Council, so I know that HR department etc. Department I worked for recently had 3 issues with poor performance of HR recruitment team resulting in re-opening interview for candidates who have been missed etc. Is there a case of some sort of "neglect" - surely they can't always putting it down to human error... ?

ps
sorry for long message, I tried to narrow it down as much as I could...
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What are the reasonable adjustments you believe they should have made?

Customer:

hi. it is a good question indeed. I believe that they should offer me an interview as I believe I met all of the essential criteria. Then they should ask me what adjustments should they make for my interview. Those interview usually include 2 assignments. one is usually a telephone conversation to make sure candidate can communicate well and some sort of written tasks, for example wright a care plan for mr smith (social care settings). For those assignments I would need to be allowed for example some extra time, quiet space, maybe even specialist software such claroread etc..

Customer:

just to mention i applied for similar posts in the past with the same employer (council). on all occasions (2 or 3) i was invited for an interview. so my application could not be that bad. my bet is that person who were shortlisted was interviewing me in the past and simply disregarded my application on this occasion based on her experience/memories from last time.... unfortunately due to my dyslexia i am rather bad in processing names, so i can't quite remember if she interviewed me in the past or not. but i am fairly certain of it as all posts were under this same management (department).

Ben Jones :

From the details I have, it looks like it may be a difficult claim to make, should you decide to take it further. This is not about a failure to make reasonable adjustments – it never actually got to the stage of the employer having to make these adjustments so you cannot raise this as an argument because it is an issue of ‘what could have been’ and if that was allowed then anyone with a disability could claim for potential situations where another party may have been required to make adjustments. However you actually need to show there was a situation where they were required to make reasonable adjustments but failed to do so, which in this case would have been you getting invited to the interview and then a failure to make the adjustments. So you need to have had the interview to be able to claim for this.


 


The other potential issue is whether you were not selected for the interview because of your disability. If that was the case it would be potential direct discrimination but the employer could justify it if they can show that their decision not to invite you had nothing to do with your condition and as driven by other factors. This would really depend on what their justification and evidence are available and they provide.


 


If you did not want to go to tribunal then your options are somewhat limited. It is rare for employment lawyers to work on a no win no fee basis and even if you found someone, you still have to pay the tribunal fees (over £1,000) to make the claim. You cannot force an apology from them even if you go to a tribunal and win and the only thing the tribunal can do is award you compensation. You can pursue any internal complaints procedures the employer has but that depends on them dealing with it fairly and you cannot guarantee that. So these are the options really….what works for you would be for you to decide based on your circumstances.

Customer:

what evidence would i need to proof that it was discrimination? can i somehow establish if person who was shortlisting actually interviewed me in the past and knew that I had disability? And what about indirect discrimination? they did not follow their own policy after all...

Customer:

... and should i involve ACAS for conciliation? would i be able to get some sort of apologies during that process?

Customer:

if no tribunal can i ask them to interview me and consider for that post? i believe another person was recruited for the post already...

Ben Jones :

well you are not the one that needs to provide the evidence - all that is experted of you is to show that discrimination was likely to occur, then it is for the employer to prove that it did not, so they are the ones with the burden of proof. However, you will find it very difficult to prove that the person who made the decision did so specifically because of your disability - if this was not documented anywhere, that could be very difficult. You can try ACAS conciliation but this is just mediation and they cannot force the other party to agree on anything - also note that no one can force them to apologise, that is not possible. Also you cannot force them to interview you now - you can ask them, but you cannot force them, so if they reuse, then you cannot do much to change that

Customer:

so pretty much your advice is to give up and move on?

Ben Jones :

well you can try ACAS but if you do not have the funds for tribunal, all you can do is challenge them directly, which would really depend on how they decide to deal with this, so if they close the case, that would be it unless you change your mind on going to tribunal

Customer:

last question. my understanding (after reading internal policy) is that HR prepare files (applications) for collections by recruiting manager. their argument is that HR forgot to put cross "next to my name" indicating that i declared disability. could i request or acas to see that document to establish if they really forgot to mark that i declared disability. am i ok to think that if they did put the "cross next to my name" that would help the case of direct discrimination.

Ben Jones :

ACAS cannot force them to release that document, this usually only happens once you get to tribunal. But you can write to the organisation and ask them t disclose that, you can state that you are making a subject access request under the Data Protection Act and ask them to release any personal information they have on you, including that form

Ben Jones :

that may help but again it depends on whether they can justify their decision was based on other factors that were not in any way related to your disability

Customer:

if i request that form under dpa will they provide whole form? i presume blacking out other names...?

Ben Jones :

yes they can blank out other information to ensure they do not breach data protection fo others in the process

Customer:

ok, thank you.

Customer:

just before i go any idea of what sort of money i could possibly get if go to tribunal and win?

Ben Jones :

If a claim for discrimination is made, the usual remedy would be to award compensation for injury to feelings. This is calculated by considering the level of discrimination that the claimant has been subjected to. The seriousness of the discriminatory behaviour is assigned to one of three ‘bands’ known as Vento bands, named after a court case with that name. The current compensation levels are as follows:



  • Lower band - for less serious cases, for example an isolated incident or event (£600 - £6,000)

  • Middle band - for serious cases which are not serious enough to fall within the highest band (£6,000 - £18,000)

  • Top band - for the most serious cases, for example if there has been a lengthy and calculated campaign of harassment/discrimination (£18,000 - £30,000)


 


Yours will likely fall in the Lower band because this was just a one off event but at which end of the scale it would be for the tribunal to decide.

Customer:

ok. thank you. have a good night.

Ben Jones :

you are most welcome, all the best

Ben Jones, UK Lawyer
Category: Employment Law
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Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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