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Section 4A(1) of the Disability Discrimination Act 1995 sets out when there is a duty on employers to make “reasonable adjustments” to work or work premises. This occurs where a provision, criterion or practice (applied by or on behalf of an employer) or any physical feature of premises occupied by the employer places a disabled person at a substantial disadvantage compared with those not disabled. The employer then has a duty to take any steps reasonable, in all the circumstances of the case, to prevent the provision, criterion, practice or feature from having that effect.
The duty to make reasonable adjustments is only triggered where an employer knows, or ought to have known, an employee was disabled. Disability can be complicated by the fact that an employer may not know an employee is disabled, particularly if the disability involves a mental health condition.
The case of Secretary of Work and Pensions v Alam (case ref UKEATPA/0242/09) provides guidance on the scope of this exemption.
Facts
Alam, arrived late for his shift as an administrative officer, he then asked if he could leave early to attend an interview for an evening job that he needed because he was experiencing financial difficulties. Not unreasonably, both his manager and a senior manager refused his request but Alam still left work early. He was issued with a written warning for leaving the office early without permission. During a subsequent disciplinary hearing, he explained he was “running late and had missed taking medication” (this was “over the counter”, unspecified medication). Alam said he had felt “agitated” and that the effects of his stress and depression had made him “unfit to carry on working”. Medical report
The tribunal found that no medical investigation had taken place during the disciplinary proceedings and prior to the sanction being imposed. A GP report obtained six months later disclosed that at the time of the disciplinary proceedings Alam had been suffering from depression, which had a number of effects including a loss of concentration and temper. Legal test
Although the employment tribunal considered that his employer should have known about his disability, thus triggering the duty to make reasonable adjustments, the EAT disagreed. The appeal tribunal outlined a new test to be taken into account when determining an employer’s state of knowledge in relation to disability. Tribunals should ask:
• Did the employer know that the employee was disabled and that this disability was liable to affect the employee in the manner set out in section 4A(1)?
If the answer to that question is “no” then there is a second question, namely:
• Ought the employer to have known both that the employee was disabled and that this disability was liable to affect the employee in the manner set out in section 4A(1)?
Applying the test in this case, the EAT answered the first question in the negative. It decided the employer did not have the requisite knowledge of Alam’s disability or its effects, and so the duty to make reasonable adjustments was not triggered.
On the second question, the EAT felt the employer ought to have known that the claimant was suffering from depression in relation to his inability to concentrate and his short temper. But these effects were completely different to the problem in this case – the fact that he needed permission to leave early and had failed to follow an instruction not to do so. Do’s and don’ts
Employers can follow a few simple rules to avoid falling foul of the DDA.
Do speak to employees if you notice a significant change in their moods or behaviour. Employers have duties for employee’s welfare at work. In this case, the EAT felt the employee’s inability to concentrate and outbursts of temper meant that the employer ought to have known the employee was depressed.
Do ask for a medical report before issuing a disciplinary sanction where a disability issue is raised during a disciplinary hearing. In this case it did not make any difference, but in most situations it may be material to understanding the employee’s behaviour. Do ask the medical expert to explain whether employees are suffering from a disability and, critically, how their condition affects their behaviour. Ultimately, in this case, the effects of the employee’s condition did not correspond with the misconduct.
Do ensure that line managers are aware of any conditions relating to an employee that could amount to a disability, and also how the disability could affect that employee’s behaviour or abilities at work.
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