Eastern and Coastal Kent PCT v Jocelyn Grey EAT/0454/08

disability discrimination | duty to make reasonable adjustments | knowledge of disability

The Employment Appeal Tribunal (EAT) has considered the criteria that must be met for an employer to be exempt from the duty to make reasonable adjustments under the Disability Discrimination Act 1995 if it does not know, and could not reasonably be expected to know, that an individual has a disability.

Under s.4A(3) of the Disability Discrimination Act 1995, an employer is exempt from the duty to make reasonable adjustments for a disabled person if it does not know, and could not reasonably be expected to know, that he or she has a disability and is likely to be placed at a substantial disadvantage by the provision, criterion or practice, or physical feature of the premises in question.

Mrs Grey, who suffers from dyslexia, applied for a job at Eastern and Coastal Kent PCT. On her application form, she said that she suffered from a "learning difficulty/disability", but stated that she did not require any special arrangements for the interview. Mr Plummer, who was overseeing the recruitment process, did not inform the members of the interview panel about her disability. Prior to the interview, Mr Plummer asked the candidates whether or not any special arrangements should be made for them because of disability. Mrs Grey, confident in her ability to perform and not wanting the panel to be influenced by her disability, declined any special arrangements. She was not selected for the job.

An employment tribunal found that the employer was not exempt from the duty to make reasonable adjustments. It found that, had the members of the panel been made aware of Mrs Grey's learning disability, they would have known that she would be placed at a substantial disadvantage and there were a number of steps that the panel could have taken.

The EAT disagreed with the tribunal's approach. An employer is exempt from the duty to make adjustments if it:

• does not know that the disabled person has a disability;
  
• does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
  
• could not reasonably be expected to know that the disabled person has a disability; and
  
• could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

The EAT stressed that all the criteria must be met. In particular, the tribunal in this case had not considered whether or not the employer “could not reasonably be expected to know” or did “know” that the claimant was “likely to be affected” so as to be placed at a disadvantage at the interview in comparison with people who did not suffer from dyslexia.

The case was remitted to a new tribunal to reconsider the issue.

Case transcript of Eastern and Coastal Kent PCT v Jocelyn Grey (Microsoft Word format, 91.5K) (on the EAT website)

Go to XpertHR case law stop press.