Requesting adjustments before the interview
I was delighted to be shortlisted for interview at a place I really wanted to work. Straight away, I emailed the HR contact (HR-Junior) to let the employer know I am deaf and need the names of the interviewers in writing and the main interview questions given to me in writing as well as verbally in the interview. I also asked for the interview panel to be told I was deaf.
People’s names are a nightmare for me as a deaf person, context and other cues don’t help. I struggle to remember names I have only heard. If I see a name written down I am much more likely to remember it. Written questions mean even if the interviewer is difficult for me to hear I have access to the question in an accurate format and can be sure I understood it correctly. It also helps with my memory as I tend to find it difficult to hold things in memory and think properly at the same time. Listening, especially to strangers takes a lot of processing time and energy for me.
A few days later HR-Junior replied to confirm the employer was happy to make the adjustments I had requested. She asked if she could share my adjustments request email with the panel chair so the adjustments could be put in place – I emailed back to say she could do this.
On the day of my interview (day 0) I realised I had not been given the interviewers’ names in writing. I decided not to worry as sometimes they are provided during the interview itself – especially if the panel staffing has not been finalised in advance.
I reported to the correct place, handed my documents over for the obligatory checks and photocopying before being taken to wait for the interview. After a few minutes, the Chair of the panel invited me into the room. There was the usual slightly awkward settling in period before the Chair started the introductions and interview proper.
I soon realised the written-questions were not being provided…
As a deaf person I have to concentrate hard to follow speech, especially with people I do not know well. If I allow myself to become distracted my brain will stop processing the speech meaning I will have no idea what has been said. At worst, (which often happens to me in shops) is a situation where I stop realising someone has even been speaking, even when I am expecting them to talk to me and think I am concentrating on their face/mouth movements.
I could not allow myself to get distracted by thinking through the pros and cons of interrupting the interview so decided to just do my best without the written questions. It was quite hard not to panic. I felt there were at least two occasions where the interviewers and I were talking at cross purposes and not understanding one another well. My memory of the interview was patchy because I had to concentrate so hard on hearing – I couldn’t even remember the names of the interviewers.
Telling HR adjustments didn’t happen
Day 1: I emailed HR-Junior as soon as I got home to let her know that the interviewers’ names in writing and written questions adjustments had not been provided. To my surprise she replied the next morning (day 2) admitting that she had filed my email without passing my adjustment request onto the panel so the failure was her fault – she was very apologetic. I realised this meant the panel had not known I was deaf, but I had given my answers as if they did – which could have come across as rude or strange.
At this point I did not know the interview outcome and was worried my performance had been negatively affected. I asked HR-Junior to ask the interview panel to consider ways of mitigating the disadvantage the lack of adjustment and stress of that had on my performance.
Didn’t get job, disadvantage concerns dismissed by Chair
A few days later (day 5) I received an email from an HR-Senior saying I had not been successful in getting the job and offering me feedback. The email also included a message from the panel Chair saying that she was 100% confident that I had not been disadvantaged as the panel did not notice me struggling to hear or answer any of the questions.
I decided to just ask HR-Senior for the interview feedback and take a few days to think about the adjustments issue. It is often better to say nothing than something you may later regret. HR-Senior sent me feedback on day 9.
Deciding whether to complain or not?
I took a little bit of time to think about whether I would pursue my complaint. I talked to friends and family including many who have a lot of experience in the area of deafness and some who were able to help me overcome self-doubt, draft and proofread a formal and legal complaint.
I had several reasons for deciding to pursue the complaint including:
- The panel chair was not qualified to judge whether I was at a disadvantage (I had not asked her to make that judgement).
- By ignoring the disadvantage the panel had not even tried to mitigate it, so I was not able to trust the fairness of the appointment.
- I am left with a lot of anxiety about whether my requested adjustments would be in place for future interviews.
- It was a ‘simple’ case and I had enough evidence of the failure that Employer couldn’t deny it had happened.
- As I hadn’t got the job, I didn’t have to maintain an ongoing relationship with Employer.
- It was an ideal opportunity to run an entire case as a Litigant in Person and if I screwed it up, I could withdraw with only my time/energy lost.
I had to submit my complaint relatively quickly as there is a limited time that disability discrimination complaints can be taken in employment and that includes allowing the employer reasonable opportunity to investigate before escalating to the next stages.
Data Protection Act – Subject Access Request
Before I submitted my complaint I made a Subject Access Request (sent on day 25) for any personal data Employer had about me under the Data Protection Act. To avoid delay I made payment of £10 and enclosed a scan of my passport and a utility bill for Employer’s checks upfront.
On Day 28 I sent my complaint letter which loosely followed a “letter before action” format with the following structure:
- Paragraph summarising the nature of the complaint and which laws I was citing.
- Complaint for ‘failure to make reasonable adjustments‘ under the Equality Act 2010 on the date of interview.
- Declaration in legalese that I am a disabled person with details and impact and relevance of my impairment.
- “I confirm that I am a disabled person under the ambit of Section 6 of the Equality Act“
- I defined my level and age of acquisition of deafness.
- I explained even with hearing aids I have difficulties understanding and processing speech, especially from unfamiliar speakers.
- Chronology of events:
- Disclosing my disability before interview.
- Adjustments not being provided during interview.
- Reporting adjustment failure to HR-Junior and requesting mitigation.
- Response from HR-Senior including Chair saying I wasn’t disadvantaged.
- Explaining the issues
- I believed I had disclosed correctly before interview.
- Why I wasn’t convinced filing one email explained the failure.
- How the Panel Chair’s response was inappropriate and why.
- Impact of the adjustment failure on me.
- Remedy (what they needed to do to make amends):
- Non financial requests:
- Anonymised interview scoring data for all the interview candidates so I could compare my performance (without adjustments) compared to other candidates and understand the appointment decision.
- Employer to review their systems so that other disabled or deaf people’s adjustment requests would not be lost in future.
- A written apology for the failure to make adjustments and the Panel Chair making an inappropriate judgement about disadvantage.
- ‘Loss of Earnings‘ (loss of chance at being appointed)
- Showed workings for calculating the salary minus tax and insurance plus benefits like pension contributions. I then halved that figure to reflect 50% chance of appointment.
- Assumed 12 months of lost earnings and listed reasons why as a deaf person it is harder for me to find employment compared to a non-disabled person.
- ‘Injury to Feelings‘
- I just said “at the top end of the lower Vento band” rather than specifying an amount.
- Non financial requests:
- Citing short timescales I requested acknowledgement in 7 working days and a full response in 15 working days.
Employer’s Initial Response – offering settlement
Day 45 – To my surprise the employer made an immediate offer of settlement in a letter which:
- Acknowledged that Employer failed to provide the adjustment,
- Made a pretty good and genuine apology,
- Claimed I didn’t actually suffer any “legally definable” losses,
- Offered a significant amount of financial compensation of 15% of the loss of earnings and an amount at the lower end of the lowest Vento band.
However this compensation was on condition that I agreed not to talk about the discrimination that occurred, settlement offer/terms and accepted within 14 days.
Confidentiality in settlements
Making a generous sounding offer of financial compensation tied to restrictive confidentiality (gagging) clauses with a tight timescale for acceptance is a very common tactic from defendants. Many claimants are intimidated by this, especially if the defendants have expensive lawyers or claimants’ legal advisers are supporting the ‘status quo’. I have learned it is often worth making a counter-offer and trying to push back against terms of settlement that you do not like and not worrying too much about the timescales as long as you make a response in this time.
Negotiating confidentiality in settlement
After getting some help from some friends with the wording, I wrote back to HR-Boss at Employer on day 58 to say that I welcomed the apologies, prompt offer to settle and financial terms but I wished to discuss the confidentiality elements. I stressed that I was happy to not identify Employer or their staff but I wanted the right to be able to write about what happened including details of the complaint and eventual outcome.
HR-Boss and I exchanged several emails with different drafts around confidentiality. The legalese for some of them clearly did not say what HR-Boss was claiming. I responded to each unacceptable draft with an polite and persistent explanation of why it was not suitable and reminded her what my acceptable terms were. She had to go away to deal with her legal advisers a few times. I was also unwell for a week or two so there was some delay caused by that.
Eventually on day 77 HR-Boss sent me some draft legal wording which seemed to be acceptable which then had to be sent to Employer’s legal advisers for addition to the final settlement agreement.
ACAS Early Conciliation Service – keeping claim open
While waiting for the settlement agreement I realised I was running out of time and had to file with the ACAS Early Conciliation Service to stop the clock. All communication with ACAS was by email and I was able to let the Conciliator know we were 90% of the way to settlement so she held-off on contacting Employer for up to 28 days.
I let HR-Boss know I had done this as a formality.
Settlement bureaucracy – seemingly endless
On day 84 I received an email from HR-Boss saying she was posting two copies of the settlement agreement and Employer wanted me to seek independent legal advice at their expense. I was a bit thrown by this, but having done some research, this seems to be an ACAS requirement for settlements.
A friend recommended a solicitor who I contacted immediately and corresponded with for about a week (day 90) before my case was assigned to a ‘legal executive‘ who contacted me for a copy of the settlement agreement. I heard nothing for over a week, so I sent an email asking for a response, and only then (day 100) got told I needed to send copies of my passport or driving licence and a utility bill “for checks”. This annoyed me because I had repeatedly asked what documents the legal advisers needed and neither had addressed that question. I was away from home so it was a further 4 days (day 104) till I could email over the documents. Meanwhile HR-Boss was pressuring me for the signed settlement and adviser’s certificate – all I could do was say “legal adviser being slow” and agree to keep chasing.
To be fair to her, once I sent the documents, the Legal Executive promptly on day 105 sent me a summary of what each section of the settlement meant in plain English with a suggestion of one amendment to ensure I was not liable for tax on my compensation payment. She did not address the confidentiality elements I had explained my terms on, so we spent a further 10 days exchanging emails until I was sure she had taken those fully into account resulting in a slight amendment to that wording. I was asking something fairly unusual for a claimant so this was worthwhile being careful with.
On day 112 I received the ACAS early conciliation certificate by email. I had forgotten to ask for an extension of two weeks which would probably have been granted. I thought I now had about a calendar month which I calculated as about day 143 to issue an ET1 form to the employment tribunal at a cost of £250 to keep my case legally open [note: employment tribunal fees have since been ruled unlawful by the Supreme Court].
By day 114 I was happy with the advice and thought I could just ask for the signed adviser’s certificate and wrangle the amendments and final copies with HR-Boss directly, but Legal Executive explained she had to see the amended settlement before she could sign the certificate – which does make sense. She also explained that she was on leave from that afternoon till day 125. I sent the requested amendments to HR-Boss and let her know Legal Executive would be away on leave. HR-Boss replied saying she would send my amendments to Employer’s legal advisers. I suggested updated settlements were emailed to me – quicker than post.
The updated settlement was sent to me by email on day 117. I sent the settlement to Legal Executive for her return from holiday on day 122. Legal Executive emailed me on day 126 asking for a final confirmation that I was happy with the settlement. I did this and she very quickly sent me a scan of her advisers certificate.
I signed and dated the settlement, scanned my signature and rebuilt the whole thing as a single PDF and sent it to HR-Boss. She replied to say they need original documents and that Employer would date them – I queried the need for original documents but Employer apparently insisted. I emailed Legal Executive and asked her to send her certificate to Employer by post and printed, signed and posted two copies of the settlement to Employer myself. I email HR-Boss to let her know both sets of papers in the post and received an out of office saying she was away for a week… (Day 131)
Day 138: I receive an email from HR-Boss saying she’s received all the papers, is sending me an original signed copy of their agreement with copy of adviser’s certificate and the settlement payment has been put in my bank account. I check my account and send an email back to HR-Boss confirming I have received the settlement payment. On day 139 I receive a copy of the signed settlement agreement in the post.