Section 4A(3) of the Disability Discrimination Act 1995 (DDA) states that an employer is exempt from the duty to make reasonable adjustments for a disabled person if the employer does not know, and could not reasonably be expected to know, that the person has a disability and is likely to be put at a substantial disadvantage compared with a non-disabled person by any workplace provision, criterion or practice or by any physical feature of the workplace.
In Eastern and Coastal Kent Primary Care Trust v Grey, Mrs Jocelyn Grey brought a claim for disability related discrimination after she was unsuccessful in her application for a Community Cardiac Nursing post with the Primary Care Trust (PCT). Mrs Grey suffers from dyslexia and is therefore 'disabled' for the purposes of the DDA. On her application form for the post she selected 'learning difficulty/disability' as best describing her disability but said that no special arrangements were required for her to attend interview. Mr N Plummer, who was overseeing the recruitment process, was aware of Mrs Grey's disability but the members of the interview panel were not. When Mr Plummer asked those who had been invited for interview whether, if they were disabled, any special arrangements should be made for them for the interview, Mrs Grey decided not to say anything as she was confident of her ability to perform well at an interview and did not want to risk the panel taking an adverse view of her if its members were told of her dyslexia. In the event, Mrs Grey did not interview well and was not offered a post.
The Employment Tribunal (ET) found that the PCT was in breach of its duty to make reasonable adjustments for Mrs Grey and had therefore discriminated against her.
The PCT appealed on the ground that the ET had failed to apply the proper test to determine whether the employer was exempt from the duty to make adjustments. The Employment Appeal Tribunal agreed. In its view, Section 4A(3)(b) of the DDA means that 'an employer is exempt from the duty to make adjustments if each of four matters can be satisfied. These are that the employer:
- does not know that the disabled person has a disability;
- does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
- could not reasonably be expected to know that the disabled person had a disability; and
- could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled'.
The use of the word 'and' indicates that these are cumulative, not alternative, requirements. If the intention had been that the requirements should be alternative rather than cumulative, the EAT was of the view that the word 'or' would have been used instead.
As the ET had failed to apply the proper test, the case was remitted to a different ET to determine whether, on the evidence, the PCT was exempt from its obligation to make adjustments.
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