A recent case has clarified the circumstances in which an employer will be exempt from the duty to make adjustments, when it is not aware of the employee’s disability.
Employment solicitor Tina Maxey comments:
In this case the employee was given a 12 month written warning after leaving work early one day without permission. A subsequent medical report stated that at the time of the incident, the employee was suffering from depression which caused severe headaches and meant he lost concentration and was prone to losing his temper.
An employment tribunal ruled that the employee suffered from a disability within the meaning of the Disability Discrimination Act 1995 (DDA). It held that the employee’s failure to secure permission before leaving work early was a symptom of his disability and that in giving him the warning, his employer had failed to make reasonable adjustments.
The Employment Appeal Tribunal (EAT) has upheld the employer’s appeal. The EAT decided that in determining whether the exemption from the duty to make reasonable adjustments applies, there were two questions to consider:
(1) Did the employer know both that the employee was disabled and that his disability was liable to put him at a substantial disadvantage compared to non-disabled people as a result of a “provision, criterion or practice” of the employer? If the answer to (1) is no:
(2) Ought the employer to have known both that the employee was disabled and that his disability was liable to put him at a substantial disadvantage?
The EAT was satisfied on the facts of the case that the respondent did not know of the claimant’s disability and did not know that it was liable to have any effect on him. The EAT concluded that whilst the employer ought to have known the claimant was disabled, it could not also be said that the employer ought to have known that his depression put him at a substantial disadvantage compared with a non-disabled person in relation to any “provision, criterion or practice”. On this basis, the employer was under no duty to make reasonable adjustments in relation to the disciplinary warning and the employee’s claim was dismissed.
Comment
This case is a useful reminder that even when an employer knows (or ought to have known) that an employee is disabled, it doesn’t necessarily follow that the employer is under a duty to make reasonable adjustments, unless the employee’s disability puts them at a disadvantage in relation to other employees as a result of a “provision, criteria or practice” imposed by the employer.
However, in circumstances where the employer has enough knowledge to suggest the possibility of a disability, it should still give consideration to whether any reasonable adjustments are necessary to alleviate any disadvantage suffered by the individual.
Click here for a copy of the judgment.