A neurodivergent job applicant’s challenge to a competency-based interview has produced a mixed outcome for the employer at the EAT. We look at what the employer got right, where it potentially fell short and how employers can make recruitment more neuroinclusive.
A reminder of the law
Job applicants, even unsuccessful ones, can bring discrimination claims about the recruitment process. A disabled candidate can bring claims such as direct and indirect discrimination, harassment and victimisation. There are also two forms of protection unique to disability discrimination:
- Duty to make reasonable adjustments: whenever a disabled person is placed at a substantial disadvantage by a provision, criterion or practice (“PCP”) imposed by the employer or by a physical feature of the employer’s premises, the employer has a duty to take reasonable steps to avoid that disadvantage.
- Discrimination arising from disability: where an employer treats a disabled person unfavourably because of something arising in consequence of their disability, and the employer cannot justify this by showing that the treatment is a proportionate means of achieving a legitimate aim.
The interview
Mr Bryce, who has autism and dyslexia, applied for a team manager role at Coventry City Council. The Council knew of both conditions before his interview.
The interview for all candidates was made up of a presentation, followed by seven competency questions which requested examples of when candidates had demonstrated particular skills.
Prior to the interview starting, the Council agreed to several adjustments requested by Mr Bryce, including:
- allocating him the last interview slot of the day, so it could overrun without time pressure;
- sending the interview questions to him at least 20 minutes in advance;
- prompting or rephrasing if he appeared not to understand a question; and
- reminders of multi-part questions and refocusing him if he lost track.
Mr Bryce scored lowest of all the candidates and was unsuccessful. He brought claims for failure to make reasonable adjustments and discrimination arising from disability.
Reasonable adjustments
Mr Bryce argued that the Council applied a PCP of giving candidates a limited amount of time to provide examples in response to questions. He said he struggled to give examples on the spot and was not offered the job because he didn’t have enough time to respond. He claimed that, in addition to the adjustments made, the Council should have also asked “closed” questions requiring only a “yes” or “no” answer.
The Tribunal held that this adjustment would not have addressed the alleged disadvantage but this finding was not fully explained and the EAT noted that the nature of a question could affect how quickly Mr Bryce could respond.
Nevertheless, the Tribunal had gone on to consider the adjustment and the EAT upheld its conclusion that reasonable adjustments had been made. In particular, the EAT agreed that:
- the interview questions were “closed” (and we discuss this further below). The Tribunal had referred to the National Autistic Society’s tips for interviewing autistic candidates when reaching this finding.
- limiting the interview to yes/no answers was not a reasonable adjustment and the EAT thought this would have been “a significant over-correction”, leaving the panel no meaningful basis for assessment. Mr Bryce could draw on his experience; his difficulty was doing so at speed. An adjustment that undermines the purpose of the assessment was not reasonable.
Discrimination arising from disability
The “something” relied upon by Mr Bryce was stress in new situations, such as meeting people at interviews. He said this contributed to the Council’s rejection.
The Tribunal concluded that Mr Bryce had not been stressed and so was not treated unfavourably because of something arising in consequence of his disability. The Tribunal had relied on the evidence of one of the interviewer’s that, based on his previous experiences interviewing, Mr Bryce had not appeared nervous. Mr Bryce had confidently explained the adjustments he needed and declined to share his screen when asked, which the interviewer felt an anxious candidate would not have done.
The EAT found the Tribunal’s reasoning unclear and flawed. The Tribunal had not questioned whether stress might present differently in a person with autism, and had preferred a non-expert’s observations, based on neurotypical behaviour, over Mr Bryce’s own evidence.
The Tribunal’s reliance on assumptions about how stress would manifest in a neurodivergent candidate meant this part of the claim had to be reconsidered. It has therefore been remitted to a different Tribunal to decide whether Mr Bryce was stressed, whether he didn’t get the role because of that stress and, if so, whether the recruitment decision was justified.
Top tips for neuroinclusive recruitment
This case is a helpful reminder to employers of the types of adjustments that should be considered during the recruitment process. Here are some practical lessons for employers:
Proactively consider adjustments
The duty to make reasonable adjustments only arises where the employer knows, or could reasonably be expected to know, both that the candidate is disabled and that they are likely to be placed at the particular disadvantage.
In this case, the Council had known about Mr Bryce’s disabilities in advance. He had phoned the recruitment team after applying to disclose his conditions and then discussed adjustments before the interview. Not all applicants are as forthcoming, but that doesn’t mean employers are off the hook. Neurodivergent conditions are often invisible and an employer can be deemed to have knowledge if there are clues.
Employers generally cannot ask health or disability questions before a job offer but they can ask about adjustments needed for the recruitment process. Employers should consider inviting every candidate to say whether they need adjustments, regardless of diagnosis.
Perhaps the most effective way of ensuring recruitment is neuroinclusive is to design the process inclusively for everyone. For example, by offering all candidates the questions in advance. We touch on this in our podcast on building a neuroinclusive business.
Other steps recommended by the Acas guide to ensure neuroinclusion is to include adverts providing clear, role-specific job descriptions separating essential from desirable skills, stating that adjustments are available (with no need for a diagnosis) and providing alternative ways to apply (such as oral or video applications).
At interview and assessment stage, employers could consider giving every candidate advance information about the format and who will attend, using concrete questions about real past experience, breaking up multi-part questions, and allowing extra time, breaks, notes or a quieter or remote setting where needed.
Treat adjustment requests as a starting point
The Tribunal suggested that the Council could take a request for adjustments at “face value”, but the EAT was more cautious. The EAT was clear that a claimant doesn’t need to identify an adjustment themselves. The employer must understand how the candidate is affected and assess what could alleviate the disadvantage, on a case-by-case basis. Employers should explore adjustments with the individual and consider seeking occupational health input.
The EAT noted that a specific request, such as 20 minutes to review the questions, is evidence of the extent of the disadvantage, but does not settle which adjustments might address that disadvantage or what is reasonable overall. An employer’s duty is not limited to the adjustment proposed.
On the other hand, this case is a helpful reminder that employers do not need to implement every request. Adjustments that would prevent an employer from fairly assessing and comparing candidates are unlikely to be reasonable. What is reasonable will always be fact sensitive.
Closed questions
The EAT’s comment that employers must still be able to evaluate and compare candidates is helpful. Closed questions can be a reasonable adjustment, and a question can be “closed” without limiting answers to “yes” or “no”. For example, the Council’s question “what is your approach to dealing with conflicting priorities? Can you give an example?” was found to be “closed”.
Even the EAT, at Mr Bryce’s request, did not adopt an adjustment for “yes” or “no” questions. The EAT had explained the limitations of this approach and it was agreed that questions and answers would be provided in writing instead. This is a good example of exploring alternatives where a requested adjustment is not considered reasonable.
Review the assessment format
Consider whether a competency-based interview is the best way to assess the skills the role genuinely requires. The EAT noted that:
“there are other and better ways to test the suitability of some candidates, including some candidates with the claimant’s disabilities”.
Competency-based interviews can be challenging for some neurodivergent candidates because they require rapid recall of relevant examples and structured answers under time pressure. How an individual performs in an interview may not reflect their ability to do the job. Rigid online application forms, psychometric or situational judgement tests and group exercises can also disadvantage neurodivergent candidates. Practical tests, written answers or portfolios may be fairer alternatives. Later in the assessment process, work trials could also be considered.
Beware of making neurotypical assumptions
The decision highlights the risk of judging a neurodivergent person’s inner experience by their outward behaviour. Interviewers can observe that a candidate did not appear stressed, but concluding that they were not stressed is an inference. People experience and express stress very differently. This case highlights that outward confidence can mask stress and interviewers need to be alive to this.
As Professor Amanda Kirby explained in our Neurodiversity in the workplace podcast, interviews carry implicit expectations about how, and at what pace, candidates will respond. Interview notes and feedback should focus on the substance of answers against the scoring criteria, rather than impressions of a candidate’s composure.
Train interviewers
Interviewers relying on experience-based instinct can misread neurodivergent candidates. Many neurodivergent people mask, so outward calm may say little about how they feel, and differences such as limited eye contact can be mistaken for rudeness or disengagement. Acas guide on neurodiversity at work encourages employers to train interviewers on how to avoid making assumptions based on behaviour.
Candidates with the same neurodivergence may need different adjustments, depending on how they are impacted. Assessors need to be aware of the need for tailored adjustments. We discuss manager training in our earlier article on neurodiversity, harassment and misconduct.
The full judgment in Bryce v Coventry City Council can be found here. The Acas guide on neurodiversity at work can be accessed here.
