Requirement for Employee to Sit a Written Exam Was Not Disability Discrimination

We have previously written about a case where a claimant was successful in arguing disability discrimination when she was required to take an exam as part of her employer’s recruitment process.

In a similar sort of case, Schofield v Manchester Airport Group plc, the claimant was not successful.

Background

Mr Schofield was employed by the Airport as a Security Officer.  He had dyslexia, dyspraxia, dyscalculia and dysgraphia which, together, amounted to a disability. After Mr Schofield started employment, he (and other new recruits) had to sit, and pass, a written exam. He mentioned some of his difficulties to the trainer before the exam, and some accommodations were made for him. Mr Schofield did not pass. He was allowed to re-sit the exam the same day. The Airport made some adjustments for him at the re-sit. He was given unlimited time for the exam (he actually finished after 90 minutes); a large-print exam paper; and the invigilator read out some of the questions to him (he chose to read others for himself). Mr Schofield did not pass the re-sit either. As a result, he was dismissed. He brought a claim for failure to make reasonable adjustments, and discrimination arising from disability.

Mr Schofield claimed that the Airport should have made more adjustments for him by allowing him more time to take the exam; and providing a person to assist him by reading the questions to him and writing down his dictated answers.

What did the Tribunal decide?

The Tribunal found that the requirement for Mr Schofield to take the exam placed him at a substantial disadvantage compared with people who were not disabled, in that he had difficulty writing down the answers; he found it difficult to read and memorise the course material; and he suffered from visual disturbance when trying to read the questions.

However, the Tribunal decided that the Airport had done enough to make adjustments in the circumstances. It was not reasonable for the Airport to give Mr Schofield any more time; he had had unlimited time in any event. Mr Schofield appeared to be saying that he should have been the only candidate to be given more time. However, the exam was not competitive, so his chance of passing was not affected by how well his colleagues performed. The Tribunal decided that in reading out some of the questions to Mr Schofield, the Airport had made a reasonable adjustment. The Tribunal did not think it was reasonable for the Airport to have to provide someone to write down his answers for him. Giving Mr Schofield unlimited time to write down his own answers was enough; on the evidence, no amount of writing assistance would have enabled him to pass.

In relation to the claim for discrimination arising from disability, the Tribunal decided that Mr Schofield was treated unfavourably (by being dismissed) because he had failed the test, and his failure arose out of his disability. However, his dismissal was proportionate, as there was strong public interest in ensuring that security staff who worked at the Airport were trained and tested.

Points to note for employers

  • What is a reasonable adjustment to make for a disabled person will depend very much on the facts, particularly how beneficial the adjustment will actually be in removing the disadvantage faced by the disabled person. In this case, the Tribunal’s view was that Mr Schofield’s misunderstanding of the questions was a factor in him not passing, despite the adjustments that were given.
  • Other factors that will be taken into account in deciding whether an adjustment is reasonable include the cost of making the adjustment; its practicability; the type and size of the employer; and the employer’s financial and other resources. In this case, the Tribunal noted that the Airport was a large organisation which could be expected to devote considerable resources to making adjustments for disabled employees.
  • Testing employees, for example by a written exam, is only likely to be justifiable where there is a direct link to the role. The Tribunal accepted that the Airport needed to demonstrate to the public and to the authorities that its Security Officers, including Mr Schofield, had been properly assessed.