The Claimant has worked for the Respondent since 2005. He has a stammer, which the Respondent knows. In 2020 he applied for a promotion to a position for which there were two vacancies. Prior to oral interview, in answer to questions on a form about adjustments for the interview, he indicated that, because of his stammer, he might need to be allowed more time to complete his answers. Oral interviews were conducted by videoconferencing because of the pandemic. The Claimant was judged to have performed well overall, and passed the interview, but he scored one point behind the second most successful candidate. The jobs were given to that candidate and the highest scorer. The Claimant brought complaints of failure to comply with the duty of reasonable adjustment (section 20 Equality Act 2010) and discrimination arising from disability (section 15). He did not rely upon the fact that he needed more time for his answers, but on the fact that his stammer meant that he went into what he called “restrictive mode”, giving shorter answers to some questions than he otherwise might, as a way of avoiding stammering. He did not raise this effect of his stammer in the interview form, nor did the Respondent otherwise have actual notice of it (as opposed to being on notice of the fact that he might need more time to complete his answers). However, in light of the evidence presented to it, the ET accepted that this effect of “restrictive mode” was something arising from the Claimant’s stammer, which had in fact had an impact on his performance at interview. The ET concluded that although there had been discrimination arising in consequence of the Claimant’s disability, the measure adopted (conducting videoconferences in the middle of the pandemic and the fact the role was itself included oral communication), was a proportionate means of achieving a legitimate aim. The Claimant appealed.

The EAT dismissed the appeal. The reasonable adjustments complaints failed, because the ET found that the Respondent, as well as not having actual knowledge of the disadvantage relied upon, did not have “constructive knowledge” of it, being a reference to the test in schedule 8 paragraph 20 of the 2010 Act. The ET did not err in so concluding. It did not fail to identify the PCPs relied upon, nor the substantial disadvantage relied upon, which was the same in relation to all the PCPs. Nor did it err by failing to consider whether the fact that the Claimant gave less detailed answers to some questions than expected should reasonably have put the interviewers on enquiry as to whether this might be an effect of his disability. In reaching its conclusion on constructive knowledge, the ET properly had regard to the factual background and context of the Claimant’s general high performance at work, a previous similar interview process in relation to which he had raised no similar concerns, and his overall good performance at this particular interview, in which he was only one point behind the second-highest candidate. Nor did the ET err in dismissing the section 15 complaint on the basis that the justification defence was made out. It did not err by failing to consider what it was that needed to be justified, nor did it err by taking account of irrelevant considerations.