Published on 12, July, 2020
For the sake of confidentiality and ongoing proceedings, I will not disclose names of organisations or individuals concerned.
Background: I was diagnosed when I was 19 with autism. I had never worked before before this. I am now in my early 20’s and managed to get a job 2 years ago. I was not recruited through normal methods, I was given an opportunity on a scheme which became an apprenticeship but wasn’t considered recruited through fair and open therefore I couldn’t apply for internal vacancies, only external. I was given a contract and I had the same employment rights as everyone else.
My autism traits of repetition and accuracy allowed me to produce the work at extreme speed, productivity that had never been heard of and 100% accuracy.
A year into my apprenticeship, a vacancy within the office for the exact job role I was doing was being advertised. I applied and was given a judgment test but I failed it. I asked for it to be bypassed quoting caselaw; Betts Vs The Government Legal Service. This was then bypassed a week later. Then for the interview. It was a competency based interview and I failed it. No reasonable adjustments were put in place and I’m currently going through an ET.
The thing that really concerns me within the autism community is the percentage of autistic adults in full time employment. It’s at 16% I believe for full time and 32% for some sort of work.
Now my position is rare, because most people if not all, wont get into a job without normal recruitment methods, therefore no argument and if you fail a recruitment, you are usually not in the job role therefore it’s hard to do anything. I am in the job role, I was the best in the office over achieving and yet I can’t pass an interview. If I can’t pass an interview when I’m doing the exact job, how on Earth is someone else with the same diagnosis expected to?
I believe this is a real opportunity here to prove interviewing and autism just doesn’t work. Does anyone have any opinions, legal knowledge or is their any organisations that would consider this a landmark they are willing to assist with?
I ask if you can identify the organisation, don’t post them as it could potentially impact
An occupational health assessment was carried out and the report concluded that the employer should find an alternative to an interview, but they went against it and offered a second interview as a reasonable adjustment in which I failed again. The case won’t lose, and I’m aware of the waiting times, it doesn’t bother me.
I just had a thought... In your case, it would have been much more practical for your employer to have offered you a Working Interview - especially as you were already doing the job you were interviewing for. Might be worth mentioning to your representation as a mediatory step.
I know it doesn't directly help with the precedent you are wanting to set but it may help prevent a lot of stress further down the line.
Unfortunately, the ET Regs (2013) do not make allowance for specificity of discriminatory practice; they only fall back on the existing protections under both ERA (1996) and EQ (2010). Basically, to get the type of legal precedent you are after would mean either a change in the law (probably Equality Act (2010)) to make ASD a separate and distinct protected characteristic (I believe someone on here was trying to set up a YouGov poll to do just that) or separate and distinct litigation identifying the nature of the disability that you were discriminated by (in this instance the way that we neurodiverse individuals are, basically, crap at interviews). With the right advocate, you might be able to get the Equalities Commission to bite but they may just state that they have it covered under section 20
I need to be more specific. I don’t want the ET to rule that The employer failed to make reasonable adjustments for a disabled person under the equality act. I want it to rule that autistic candidates are not suitable for interviews therefore a precedent can be set for all future vacancies and increase the employment rate
HiddenSpark said: I’ve also self taught myself Law and I seem to be a natural at it so I am starting University in September
Same here. I'm looking at attending The University of Law (Guildford) to complete a Graduate Diploma in Law (GDL)
For the setting of a precedent in case law it is usually enough to win. That said, with ET case law, most representation relies upon the result of the losing side appealing and the result of the appeal, as heard before the EAT, is taken as the precedent.
One prime example of this is Schultz v Esso Petroleum where Esso tried to claim that the case should be dismissed as out of time (pursuant to ERA (1991) s119) as Schultz had filed later than the mandatory 3 month limit. However, Schultz's defence was that it was not "reasonably practicable" for him to file earlier by means of depression (evidenced). The ET judge (EJ) agreed with Schultz so Esso went to the EAT. The EAT dismissed the appeal holding with the judgement of the original EJ.
In many subsequent cases, it is the judgement handed down by the EAT that is referenced rather than the original case.
For your case I would just caution that you may be in for a much longer fight than you originally bargained for.
I should probably mention that I am already legally represented, I’ve also self taught myself Law and I seem to be a natural at it so I am starting University in September. The discrimination Ect I already know how to win. The post is more regarding the precedent that has the potential to be set, one that can benefit the whole community. I’m just wondering if I have to do something to else besides win, because whilst they may rule that no reasonable adjustments were placed and rule it was discrimination, the rare position I am in is something I think I need to elaborate on to prove that it doesn’t matter if someone with autism is in the job or not, the interview itself is not suitable, this can be backed up by statistics and my overachieving. This is the bit I feel needs some help with because I am not sure how to set this precedent
From personal experience, employment tribunals can get very stressful. I have found it particularly difficult to cope when the other side deliberately misses a filing date... Wishing you all the best