Test for knowledge of disability set out

Under S.4A(3) of the Disability Discrimination Act 1995 (DDA) employers are exempt from the duty to make reasonable adjustments if they do not know, and could not reasonably be expected to know, that the relevant person has a disability and is it is likely to put that person at a substantial disadvantage.

In Eastern & Coastal Kent PCT v Grey, Mrs Grey was disabled by virtue of having dyslexia of which the employer was aware. An employment tribunal concluded that she had suffered disability discrimination, due to the employer’s failure to make reasonable adjustments in connection with an interview for a new post because the employer knew or could reasonably have been expected to know of the claimant’s disability and had the interview panel members been aware of the claimant’s disability, they would have been aware that she would or might have been at a substantial disadvantage.

The tribunal rejected the employer’s argument that S.4A(3) DDA1995 applied. The employer contended that while they knew that the employee was disabled, they did not know, nor could they be reasonable expected to know, that the dyslexia placed her at a substantial disadvantage.

The employer appealed, arguing that the tribunal had wrongly applied S.4A(3). The EAT agreed. It was an error for the tribunal to have concluded that the respondent’s knowledge of the claimant’s disability thereby constituted knowledge that she was likely to be placed at a substantial disadvantage by the interview process. The tribunal did not consider if the respondent, firstly, ‘could not reasonably be expected to know’ or, secondly, did ‘know’ that the claimant was ‘likely to be affected’, so as to be placed at a disadvantage at the interview in comparison with people who did not suffer from dyslexia.