If you are unaware of an employee's disability you can't be expected to make adjustments
To what extent can an employer be held liable for a failure to make reasonable adjustments under the Disability Discrimination Act when it is not even aware of the fact or the effects of a claimant's disability?
This was the issue that came before the Employment Appeals Tribunal in the recent case of DWP vs Alam, heard earlier this month.
In this case, there was evidence that Alam had a short concentration span and bouts of short temper - diagnosed as symptoms of depression. His employer, the Department of Work and Pensions, issued a 12-month final written warning after Alam left work early one day without permission. It was the policy of the DWP that an unauthorised absentee would automatically be subject to a 12-month written warning, but when Alam received this warning he claimed his condition made it hard for him to sufficiently control himself to wait for permission to leave early. Alam brought a claim to the employment tribunal, stating that it constituted a failure to make reasonable adjustments to his condition.
The tribunal originally agreed with Alam, but the DWP appealed against this decision on the basis that it had not known that the reason for the claimant leaving work early was related to his depression (which has been found to amount to a disability for the purposes of the Disability Discrimination Act 1995).
The subject of the appeal was the proper application of a section of the Disability Discrimination Act, which states: ‘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 be reasonably expected to know in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).'
When it came to this appeal, the tribunal stated that the issues at stake were: (i) Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner requiring an employer to make reasonable adjustments? If the answer to that question is ‘no' then there is a second question, namely: (ii) Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in that manner?
The appeal tribunal answered both of these questions in the negative. It found that even if the employer ought to have been aware of Alam's disability, it cannot be assumed that the employer ought to also have known that the particular disability put the employee at a substantial disadvantage compared with others.
Employers and HR departments will welcome this judgment as it clarifies the law and removes what had seemed an unreasonable burden on employers in previous case law. The option is now open for an employer to argue that even though it was aware of the fact of an employee's disability, it was reasonably not aware of its effect upon the employee and so its duty to make reasonable adjustments was not triggered. However, it remains important for employers to be cautious. The DWP succeeded on appeal here as the appeal tribunal found that it reasonably was not aware of the effects of the claimant's condition upon him. Such a defence shall not benefit an employer that closes its eyes to the obvious or that fails to investigate such matters when it reasonably ought to.
Nick Siddall is a barrister specialising in employment law at Kings Chambers Manchester