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Eastern and Costal Kent PCT v Grey

(January 2009, EAT)

Employers may have a defence for failing to make reasonable adjustements where they were unaware of the disability and its effect, and could not reasonably have been expected to know of it. This EAT decision would make the defence harder for employers to rely on - BUT the EAT has subsequently disagreed with it in DWP v Alam.

DDA s.4A(3) - Reasonable adjustments

"Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know -
....
(b) in any case, that the person has a disability and is likely to be affected in the way mentioned in subsection (1)."

The claimant suffered from dyslexia and was therefore 'disabled' within the DDA. She applied for a job as a cardiac nurse, and had had many years cardic nursing experience.

She was turned down for the job and argued that reasonable adjustments should have been made for her dyxlexia. She said on her application form that she had a 'learning difficulty/disability', but replied in the negative to whether she required any special arrangements for the interview. The interview panel did not themselves know of the disability.

The Employment Tribunal decided that the employer had failed to make reasonable adjustments. The employer appealed against that decision.

Held by the Employment Appeal Tribunal:

'Lack of knowledge' defence requirements are cumulative

The EAT considered what the employer has so show in order to rely on the 'lack of knowledge' defence to the reasonable adjustment duty. (The defence, in DDA s.4A(3)b), is quoted in the yellow box above.) The EAT said:

"11. In our view, sub-section (3)(b) means that an employer is exempt from the duty to make adjustments if each of four matters can be satisfied and they are that the employer:

12. It is necessary to stress that these are cumulative and not alternative requirements...."

The EAT found that the Employment Tribunal had not properly considered whether the employer "did not know and could not reasonably be expected to know" that the claimant was "likely to be affected" so as to be at a disadvantage. The EAT therefore sent the case back for reconsideration.

The EAT considered that the word "likely" in (ii) and (iv) means something different from "may" or "might".

Other discussion by the EAT

The EAT rejected various other arguments of the employer (labelled Grounds C and D). It was incorrect that the Employment Tribunal had no evidence that the employer knew or reasonably would have known of the likely disadvantage. The EAT gave various reasons for this, one of which was that some of the interview panel's own comments were relevant and significant, e.g. "could have expanded more on answers re skills", "very vague in answers and presentation".

Another point put by the employer as part of an argument rejected by the EAT was that the job for which the claimant had applied required excellent communication skills. The employer argued that there should be no reasonable adjustment at interviews which could not possibly be replicated in the job itself. It was, said the employer, necessary to bear in mind the pressurised nature of the job for which the claimant was applying as it required the successful candidate to communicate effectively with family members in the height of their distress when a loved one was in a life or death situation. (The possible reasonable adjustments for the interview set out by the Employment Tribunal included, for example, giving her more time without penalty and taking care that she was not unduly stressed.) Generally, the EAT found that the conclusions of the Employment Tribunal were supported by evidence and this case did not go anywhere near reaching the level of perversity required for an appeal to succeed on that ground.

A full transcript of the judgment is available at www.employmentappeals.gov.uk/Public/Upload/08_0454rjfhLBRN.doc

My comments

The 'headline' aspect of this case is the EAT's apparent view that the requirements for the 'lack of knowledge' defence are cumulative. It remains to be seen whether this is followed in future cases - but the EAT has subsequently taken a different approach in DWP v Alam which I think is more likely to be followed. It is probably fair to say that the previous general understanding was that employer's lack of knowledge (actual or imputed) of either the disability or its effect was sufficient for the defence to apply, ie. that the Alam case is correct.

In the other discussion by the EAT, there are interesting parallels with stammering: as regards some of the disadvantages apparent from the interview panel's notes (compare possibility of 'limited responses' by people who stammer); and the excellent communication skills required and stress levels of the job. It should be noted that the claimant had many years cardiac nursing experience, and possibly - as with stammering - an interview may not be an appropriate way to test what effect (if any) the dyslexia on her performance in the job.


Employment: Reasonable adjustments

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Last updated 27th November, 2009