DWP v Alam

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 disagrees with a previous decision, and makes it somewhat easier for employers to rely on the defence.

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 had depression, and left work early without permission. He was disciplined for this.

He claimed a breach of the duty to make reasonable adjustments. One argument raised against this was the 'lack of knowledge' defence - namely it could not be said that the employer ought to have known that difficulty in asking for permission was a feature of the claimant's disability, such as to put him at a substantial disadvantage.

Held by the Employment Appeal Tribunal:

There was no finding of fact that difficulty in asking for permission was a feature of the claimant's disability. Putting matters at their highest, the employer ought to have known that there could be times when, because of his disability, the claimant might have difficulty in concentrating, difficulty in controlling his temper and severe headaches. The employer's appeal succeeded.

The EAT disagreed with the view apparently expressed in Eastern and Costal Kent PCT v Grey that the requirements of the 'lack of knowledge' defence are cumulative. In the present case, the EAT considered that "two questions arise. They are:

1. Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? If the answer to that question is: "no" then there is a second question, namely,

2. Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?"

A full transcript of the judgment is available at www.bailii.org/uk/cases/UKEAT/2009/0242_09_0911.html

My comments

Assuming this case rather than Eastern and Coastal Kent PCT is followed, it restores the position to what I and probably most other people had always thought was the case.