Employers are under a duty to make reasonable adjustments where any employment practices or physical features of premises place a disabled person at a substantial disadvantage compared to a non-disabled person. This duty has been brought into sharp focus following the decision of London Borough of Lewisham v Malcolm, which has made it much harder for employees to bring other types of disability discrimination claims.
The duty to make adjustments does not apply if the employer does not know, and could not be reasonably expected to know, that the person has a disability and is likely to be placed at a substantial disadvantage. This case considered when an employer can rely on this exemption to avoid making adjustments.
Mrs Grey is dyslexic and regarded as disabled for the purposes of the Disability Discrimination Act 1995. She claimed that Eastern & Coastal Kent PCT failed to make reasonable adjustments for her during an interview process. In her application form, she referred to her dyslexia but said that she did not need any special arrangements to attend the interview. She did not perform well at the interview and was not offered the post. The Employment Tribunal upheld her claim for failure to make reasonable adjustments.
The EAT decided that the tribunal had not approached the issue correctly: for the exemption to make reasonable adjustments to apply, the employer must be able to satisfy each limb of the exemption because these are cumulative and not alternative requirements. The Tribunal had failed to take this approach. The EAT sent the case back to a different Tribunal to consider the issues afresh.
- To rely on the exemption from the duty to make reasonable adjustments employers must be able to satisfy each limb of the exemption
- The elements of the exemption are cumulative, no alternative
- Tribunals must consider whether the employer does not know, and could not reasonably be expected to know, that the person has a disability and is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.
What you should do
- Be aware of the duty to make reasonable adjustments in relation to job applicants as well as employees
- If a job applicant discloses information on an application form that suggests that they may have a disability, find out whether any adjustments are necessary
- Employers are not exempt from the duty to make reasonable adjustments just because a job applicant or employee does not request adjustments.