The EAT has confirmed, in Eastern and Coastal Kent v PCT v Grey, that an employer is only exempt from the duty to make reasonable adjustments if each of the four elements of the test set out in the Disability Discrimination Act 1995 (DDA) is satisfied.
The DDA requires employers and prospective employers to make reasonable adjustments where a provision, criterion or practice applied by or on behalf of the employer places a disabled person at a substantial disadvantage in comparison with persons who are not disabled. An employer or prospective employer is excused from this duty and has a defence to a claim in relation to a failure to make reasonable adjustments if it does not know or could not reasonably be expected to know that a person is disabled and is likely to suffer from a substantial disadvantage (section 4A(3) DDA).
The EAT, in this case concerning a job applicant with dyslexia who claimed to have been placed at a substantial disadvantage by the job interview process, held that each of the four elements must be satisfied cumulatively and that they are not alternatives. In order to succeed with a defence that the employer was not under a duty to make reasonable adjustments, it must show that:
- it did not know that the person has a disability; and
- it did not know the disabled person was likely to be at a substantial disadvantage; and
- it could not reasonably be expected to have known that the person had a disability; and
- it could not reasonably be expected to know that the disabled person was likely to be placed at a substantial disadvantage.
Impact on employers
- In this case, the employer knew of the disability but the interview panel had not been advised of it and did not make any adjustments to the process. If an employer knows or should have known about the disability, it is unlikely to be able to satisfy a tribunal that it did not know, or could not reasonably be expected to have known that the disabled person would be placed at a disadvantage.
- Once an employer is on notice of a disability, or is aware of circumstances that should alert it to a disability, it should consider very carefully whether any adjustments might be necessary, even where the individual in question has not indicated that any adjustments are required or positively stated (as in this case) that they do not believe any adjustments are needed.