DWP v Alam UKEAT/0242/09

Mr Alam was given a 12 month written warning after leaving work early one day without permission. A GP report produced for the purposes of his subsequent disability discrimination claim stated that at the relevant time he suffered from symptoms of depression, as a result of which he sometimes had severe headaches and was apt to lose concentration and also his temper. The Tribunal found that Mr Alam’s conduct in failing to secure permission before leaving was a symptom of his disability and the employer failed to make a reasonable adjustment when it gave him the warning.

DWP appealed the decision on the basis that it did not know that Mr Alam was disabled at the time it made the decision to give him a warning.

The EAT held in this case that when deciding whether the exemption from the duty to make reasonable adjustments applies, two questions arise: 1) did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in s.4A(1) of the DDA? If the answer to that is no then there is a further question 2) ought the employer to have known that the employee was disabled and that his disability was liable to affect him in the manner set out in s.4? DWP’s appeal was successful.

Key point: Employers should take note of this two stage test.