In the case of Muzi-Mabaso v Commissioners for HM Revenue and Customs, the Employment Appeal Tribunal (EAT) had to decide whether a disabled employee was discriminated against by being placed in a redeployment pool and required to take an online test as part of a recruitment process.
Indirect discrimination occurs when a provision, criterion or practice (PCP) puts an employee with a protected characteristic (for example, age, race, sex, disability) at a disadvantage compared with employees without that protected characteristic. The employer can justify a PCP by showing it is a proportionate means of achieving a legitimate aim. But employers also have a duty to make reasonable adjustments if a practice puts a disabled employee at a substantial disadvantage.
The claimant in this case had been employed by HMRC since 2004. In 2010, he was temporarily promoted while undergoing a training course, but failed the course and was demoted back to his original position. Shortly before this, he had been on long-term sickness absence suffering from stress and depression and was qualified as disabled.
As there was little work available for him in his current role, the employer placed him in its redeployment pool. When internal roles came up for which he was eligible, he told them he had a phobia of the job application process and argued this put him at a disadvantage compared to other candidates. The employer ensured he was supported and his manager helped him fill in the application forms.
Having made the application, he said he could not undertake the online test required of applicants as his disability made him too stressed. The employer offered him a private room to help alleviate the stress, but he still declined as he did not want to expose himself to any “psychological triggers”. He said the online test was not an essential part of the recruitment process and a way round it should be found.
The employer considered medical evidence that Muzi-Mabaso had supplied but decided excusing him from the online test was not a reasonable adjustment, as a number of disabled candidates had been able to complete it. He claimed indirect disability discrimination and a failure to make reasonable adjustments due to him being placed in the redeployment pool and being required to take the online test.
An employment tribunal dismissed both claims, finding that people with depression and stress, like the claimant, would not be disadvantaged by being placed in a redeployment pool. He may have been disadvantaged by the online test, but the employer had a legitimate aim - the need to have an “objective method of ensuring candidates met basic competency requirements and the need to filter nearly 5,000 applicants” – and exempting him from the test was neither appropriate nor justified.
The EAT found Muzi-Mabaso had not been disadvantaged by being put in the redeployment pool so there had been no indirect discrimination. The EAT also agreed the online test had a legitimate aim, but thought the employer had failed to consider any less discriminatory alternatives available, such as proceeding on the basis of a manager recommendation. The EAT also said the tribunal should have given more consideration to whether Muzi-Mabaso should have been exempted from the online test. By not doing this, the tribunal had failed to weigh up properly the benefits to the employer of the online test against the detrimental impact on the employee.
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