Employers do not have to make Reasonable Adjustments if they do not know that an Employee is disabled

A recent Employment Appeal Tribunal decision has clarified that employers do have a valid defence against disability discrimination claims where the employer did not know that the employee had a disability, did not know that the employee would be at a substantial disadvantage compared with non disabled employees, could not be reasonably expected to know the employee had a disability and could not be reasonably expected to know that the disabled employee is likely to be placed at a substantial disadvantage in comparison with non disabled employees. This also applies to job applicants. In Eastern and Coastal Kent Primary Care Trust v Grey, the Trust advertised a vacancy which the claimant applied for. The claimant has dyslexia, which is a disability under the Disability Discrimination Act 1995. The interview panel were not told about her disability, as she had requested. The format of the interview was for each candidate to do a short presentation that represented around 20% of the overall score, which also looked at skills, experience and qualifications. On the day there was a problem with the projector so all the candidates had to use a laptop instead. The claimant said she used special software, but did not explain why. The employer appointed another candidate who had a higher overall score. The dyslexic candidate claimed discrimination on grounds of disability. The Employment Tribunal found that had members of the interview panel been aware of the claimant’s disability, the panel would have been aware that she was at a substantial disadvantage and that there were reasonable adjustments that the panel could have taken. The Employment Appeal Tribunal found that the job required excellent communication skills as the successful candidate would be talking with family members of seriously ill patients and that the interview panel should not be required to make reasonable adjustments that could not be made in the job itself. There was nothing in the claimant’s disability to prevent her interviewing well and her previous teaching experience suggested she would be comfortable giving a spoken presentation to a group. The appeal was allowed. If you have any concerns with regard to the Disability Discrimination Act 1995 and any reasonable adjustments you may be required to make as an employer, phone Ashley Hunt or Vaishali Thakerar on 0116 212 1000 now or complete one of the on-line forms.