A man with autism is set to receive £20,000 in compensation following what has been deemed a “discriminatory” incident involving the denial of reasonable adjustments he had requested for a job interview with a government agency responsible for NHS digital technology.

In August 2021, Chris Tyerman applied for cyber security positions with NHS Digital. Despite being shortlisted for the job, he was informed that some of the accommodations he had requested in preparation for the interview were not feasible. Among his requests, which were made due to his communication difficulties, were the ability to preview interview questions in advance and the avoidance of open-ended questions by interviewers.

NHS Digital, which had described itself as a Disability Confident employer, rejected these accommodations, arguing that all applicants must be treated uniformly, thereby breaching the Equality Act. His plea for a skills assessment or work trial was also dismissed.

Unwilling to provide reasonable accommodations

Tyerman, who hails from Barnsley, has several long-term health conditions resulting from childhood lymphoma treatment and holds a master’s degree in computing information security and forensics. In response to NHS Digital’s refusal to accommodate his needs, he opted not to attend the interview, feeling that the agency was merely paying “lip service” to the need for adjustments. Moreover, he believed that if they were unwilling to provide reasonable accommodations during the interview, they would not do so on the job.

NHS Digital later contended that employment and security checks made a work trial unfeasible, and providing questions in advance was not a reasonable adjustment. They also asserted that avoiding open-ended questions would be “unreasonable.”

Tyerman made a second attempt to secure a position as a cyber security adviser in October 2021, which led to a telephone interview. However, he encountered further difficulties in obtaining the reasonable adjustments he required, notably a refusal to refrain from asking open-ended questions, resulting in the failure of his application. When he eventually received feedback, he was informed that his responses to open-ended questions lacked depth and strength.

Tyerman believed that NHS Digital’s actions were not only discriminatory under the Equality Act but also violated the NHS Constitution for England and the UN Convention on the Rights of Persons with Disabilities. After his complaint about the mistreatment went unanswered, he took his case to an employment tribunal.

It took a 16 month legal battle

During the tribunal proceedings, NHS Digital requested a medical report to confirm Tyerman’s autism diagnosis, despite already having a report from a clinical psychologist who had diagnosed him and Tyerman receiving support from an autism service funded by his local council.

A settlement in the case was ultimately reached through mediation by Acas. However, it was only after a 16-month legal battle that NHS England offered a £20,000 compensation payment for injury to Tyerman’s feelings, though they did not admit liability. They also agreed to incorporate Tyerman’s feedback into their review of how they handle reasonable adjustments for disabled staff and job applicants.

Tyerman welcomed the settlement but criticised NHS Digital’s initial “aggressive” defence as “destructive, inappropriate, and a waste of NHS resources.” He expressed hope that this outcome would foster a more positive attitude toward recruiting neurodiverse individuals.

What needs to change?

He emphasised that more autistic individuals could effectively demonstrate their knowledge and skills if the NHS were more flexible in its job application processes, such as rephrasing questions when the answer given doesn’t align with expectations.

Tyerman extended gratitude to his family for their support, without which he wouldn’t have been able to pursue this case.

An NHS England spokesperson refrained from commenting on individual cases but affirmed the NHS’s commitment to providing reasonable adjustments for candidates and staff with long-term conditions, impairments, disabilities, and caring responsibilities. Feedback from candidates is used to continually review and improve policies. Recent figures from NHS England indicate progress in this regard, with a record number of disabled staff members on NHS boards.

However, the data also reveals that only 72.2 percent of disabled staff reported having all the necessary adjustments in 2021, a decrease from 76.6 percent in 2020. Also, the report noted that 17 percent of disabled staff experienced harassment, bullying, or abuse from managers, compared to 9.6 percent of non-disabled staff.

 

 

 

 

Amelia Brand is the Editor for HRreview, and host of the HR in Review podcast series. With a Master’s degree in Legal and Political Theory, her particular interests within HR include employment law, DE&I, and wellbeing within the workplace. Prior to working with HRreview, Amelia was Sub-Editor of a magazine, and Editor of the Environmental Justice Project at the University College London, writing and overseeing articles into UCL’s weekly newsletter. Her previous academic work has focused on philosophy, politics and law, with a special focus on how artificial intelligence will feature in the future.