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A candidate was unable to undertake GCSEs due to disability - must we make reasonable adjustments?

Posted in : Seamus Says - Employment Law Discussion on 6 July 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors

Q: One of our essential criteria is a GCSE in English and Maths or equivalent. We have rejected a candidate that has not met this criterion, but they have asked do we not make reasonable adjustments or could they not make reasonable adjustments, as they were unable to do their GCSEs as a result of a disability. If it is an essential criterion, do we need to make this adjustment when they have met the other criteria?

Seamus: This is an interesting question, certainly, because it does throw back that idea of the reasonable adjustment versus what you would view as essential for being able to do a job. For me, I think the bottom line is that where there are key qualifications and experiences needed, that those are requirements for the post. You're not going to be able to do the post unless you have those.

This question, really, it's to an interesting aspect of its GCSE in maths and English or equivalent. And it maybe is that there are equivalent examinations or certificates that are the same and hold the same weight and quality as a GCSE. Dare I say, go back to the old O level, you know what happens there in that sense. But you know, the key thing here is looking at the equivalency of it. It may be that someone that has a disability that was unable to do GCSE, but they may have other qualifications that could be viewed as equivalent to that. And certainly there is a website, I can't remember the name of it, that you can go onto and it does provide you with a table of the equivalents in examinations or certificates that are the same as a GCSE.

Scott: There's a European system which does something similar. But one of the key issues here is, is it absolutely essential? Because if you have a disabled employee you've got to be able to turn around and say, "Yeah, we do need that for the job." And the reasonable accommodation or adjustment, if it doesn't enable them to do the job, then there's no point in doing it.

Seamus: But exactly, yes.

Scott: But if they can do the job and you can make a reasonable adjustment, is it really essential in this particular circumstance? But you still have to consider it. If you don't consider it at all, then you're on a sticky wicket, I would say, with regard to

Seamus: And there's lots of posts out there that it would be interesting, whenever you look at them and they say have a requirement in GCSE in English and maths, and you look at the actual posting and you think why is there a requirement for that, that the post doesn't touch on that? And again, it's down to that justification aspect and really, the employer being able to justify it. But I think it's clear that where there are specific qualifications and/or experiences and that there's an inability to meet that, even whenever you've looked at the reasonable adjustment aspect of it, it's a non-runner from that aspect, absolutely.

But it's about really looking at the alternatives and the equivalency aspect, and also then bearing in mind are there adjustments that I could make here in terms of this? If there isn't, you move on in that sense.

Scott: You usually find it's not going to work. There's always a balance with employers there anyway, because if you set the standards and the criteria too low, you end up with too many candidates.

Seamus: Well, that's it, and it can be a way of almost shifting and short-listing, is to set specific criteria and qualifications in order to limit that. But it's interesting to me that, I'm aware recently of an employer client of mine who was going through a recruitment process and was really struggling in terms of getting people.

This was an employer that was looking for a large number of employees and had done various things in terms of web, agencies, even taking to radio at one point because they were finding it difficult. And I never thought at the time, but really, they could have looked in and around of what they were demanding in terms of their criteria for the role and if they were suitable or not, you know.

Scott: Okay. There's a number of people — I was listening to the radio this morning, actually — a number of very successful entrepreneurs who have dyslexia and may or may not end up with a GCSE in English or whatever, simply, but it doesn't stop them moving on to become very successful and being able to do powerful jobs and employ lots and lots of people. Whether they set that criterion off, requirement of GCSE in English, I don't know. But you write off people too soon.

Seamus: Definitely. And for employers, they're missing a trick there, because there's talent within those individuals that simply are being ignored if they don't make that threshold. But and as we are now, there are so many different types of qualifications and there are paths that some individuals just don't go down in terms of educational certificates, whether it's GCSEs or otherwise, and they take a different road and a different path.

And as an employer might not always be familiar with those aspects of it, and you might write someone off there unfairly, where you're really missing a good talent. And of course, there are thousands of wealthy businessmen that have excelled in life and in business and that have no qualifications to their name whatsoever.

 

This article is correct at 06/07/2018
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Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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