When applying for a job, the claimant disclosed she had photo-sensitive epilepsy controlled by medication. She said at the start of the interview she might be disadvantaged by the lighting in the room. The employer thought she just meant she might need to use the sunglasses which hung from her neck – which in fact she did not use. The EAT upheld the Industrial Tribunal decision that her reasonable adjustment claim failed. The employer could not reasonably be expected to know that the lighting arrangements at the interview were likely to put her at a substantial disadvantage.
Employment Appeal Tribunal, 1998. Full decision: www.bailii.org/uk/cases/UKEAT/1998/1371_97_1307.html.
Facts
The claimant told the employer in writing that she was disabled, in that she had photosensitive epilepsy controlled by medication. Since she said it was controlled by medication, the employer did not think much more about it on the basis of that disclosure.
The claimant said to the Industrial Tribunal that when she came for interview she saw at once the possibility that she might be put at difficulty because of the lighting arrangements: bright fluorescent lighting with no diffusers or baffles, venetian blinds and light coloured walls. These were factors which predisposed somebody suffering from photosensitive epilepsy to an attack.
On entering the interview room the claimant commented to the employer that she may be disadvantaged by the lighting. The employer said it took those remarks as an explanation of the fact that she had brought sunglasses with her (they were around her neck, attached to a cord), and of the fact that she might need to use them if the occasion arose. The claimant did not use the sunglasses, and did not afterwards tell the employer that she was in any way unwell or felt disadvantaged.
She subsequently made a tribunal claim for reasonable adjustments. She argued she was put at a substantial disadvantage by the lighting arrangments, and the employer should have made reasonable adjustments to alleviate this. The employer knew of the disability but argued it had a defence because it did not know and could not reasonably be expected to know of the substantial disadvantage (see Knowledge of disability>Reasonable adjustment duty on employers). The main dispute was whether the employer could reasonably be expected to know, ie whether it had constructive knowledge, of the disadvantage. Should the employer reasonably have made further enquiries?
Industrial Tribunal decision
The Industrial Tribunal decided it could not criticise the employer for taking her remarks in the way they did, rather than as a suggestion that the room itself was unsuitable. It would have been possible for the claimant to be much more forthcoming about what she regarded as being required, and the tribunal did not accept the submission that once she had mentioned the word “epilepsy” on her application form, then the onus passed to the employer to do everything which was necessary to be done. The tribunal held the employer reacted appropriately to what it knew and it did not fail to make reasonable enquiry.
The tribunal said: “She must have been in very many office buildings and must have had a good idea what kind of lighting is likely to be found in office buildings these days. She could have said, and in our view should have said, rather more than she did if she felt that those extremely common circumstances of office lighting were in some way detrimental to her in ways that she knew but in ways that in our judgment the [employer] could not reasonably have known about unless she told them.”
In any event the tribunal did not think she was at a substantial disadvantage; if she had been she would have used her sunglasses.
Employment Appeal Tribunal (EAT) decision
Constructive knowledge
The claimant argued that the onus in this case was on the prospective employee to inform the prospective employer of a disability, but that once he or she has done that the onus passes to the employer to make such enquiries as are necessary to satisfy it that it can discharge its duty to make reasonable adjustments. Such enquires might simply be limited to making further enquiries of the employee. The employer argued that what enquiries it was reasonable for the employer to make was a question of judgment and fact for the Industrial Tribunal. She was an active person with a full employment history, various hobbies such as dancing, and was obviously well-controlled in terms of her disability.
The EAT upheld the tribunal decision that the employer did not have constructive knowledge of the substantial disadvantage. There had been no error of law. It was essentially a question of fact for the tribunal. The tribunal was entitled on the evidence to conclude that no reasonable employer would be expected to know, without being told in terms by the claimant, that the arrangements which it made for the interview in this case might disadvantage this particular job applicant. This form of epilepsy was very rare.
The EAT was concerned to balance disabled people not having to give long detailed explanations with the undesirability of employers having to ask a number of questions about a disability merely to protect themselves. In more detail, the EAT said:
We accept what Counsel for the [claimant] was saying, that Industrial Tribunals should be careful not to impose on disabled people who are seeking employment a duty to “harp on” about their disability so as, so to speak, to excuse themselves at the interview process before the selection is made. One of the purposes of the legislation is to ensure that disabled people have the same opportunities for employment, and in their employment, as others not suffering from such disability. It would be unsatisfactory to expect a disabled person to have to go into a great long detailed explanation as to the effects that their disablement had on them merely to cause the employer to make adjustments which he probably should have made in the first place.
On the other hand, a balance must be struck. It is equally undesirable that an employer should be required to ask a number of questions about a person suffering from a disability as to whether he or she feels disadvantaged. There may well be circumstances in which that question would not arise. It would be wrong if, merely to protect themselves from liability, the employers or prospective employers were to ask a number of questions which they would not have asked of somebody who was able-bodied. People must be taken very much on the basis of how they present themselves.
In the present case, whether the employer should have made further enquiries as a result of what the claimant said at the interview depended almost entirely on the perception of both parties as to what was happening. Was the claimant simply explaining that she might have to put on her glasses because the room was likely to cause a problem but she was happy to go ahead, or was she was saying she felt disadvantaged as a result of being in that room. This was a matter of fact and evidence for the Industrial Tribunal and a judgment for that Tribunal.
Substantial disadvantage
The EAT also held the Industrial Tribunal was entitled to find that the lighting arrangements did not put the claimant at a substantial disadvanrage.
The claimant argued it was a substantial disadvantage that she should be required to wear dark glasses and run the risk of looking and seeming peculiar as a result, or putting up with the unsatisfactory lighting conditions and being disadvantaged by the effect that the physical environment was having on her.
The EAT was inclined to agree with the Industrial Tribunal, although it could see the force of the claimant’s point that it is not satisfactory for a prospective employee to be forced to wear dark glasses to counteract the effect of the room. It would have been better if the employer had gone on to enquire about the suitability of the arrangements and made any adjustments reasonably required, but that was very much with the benefit of hindsight. The EAT had no reason to believe that the judgment of the Industrial Tribunal on the facts as they heard them could be faulted.
Comment
This case was cited but distinguished by the Employment Tribunal in Y v Calderdale Council (2003), a case on stammering. The tribunal in Calderdale said the Ridout claimant suffered from a rare form of epilepsy and gave little or no indication in her oral interview that she was ‘struggling’. In Calderdale it was obvious to the interviewers that the claimant was under a substantial disadvantage due to his severe stammer.
- Knowledge of disability, including the section on Constructive knowledge
- Reasonable adjustment rules: Employment.
