Out-Law / Your Daily Need-To-Know

All criteria must be met for exemptions from disability hiring law, says EAT

Out-Law News | 29 Jan 2009 | 9:02 am | 2 min. read

If a company that is recruiting is to be exempt from making provisions for disabled applicants it must fulfil all the criteria laid down in law and not just some of them, the Employment Appeals Tribunal (EAT) has said.

The Disability Discrimination Act (DDA) demands that employers and potential employers make adjustments to the job application and interview processes to take account of disability so that the process is fair.

Employers can be exempt from making any adjustments if they do not know that a person is disabled. The EAT has said, though, that in order to qualify for that exemption it has to satisfy all four conditions set down in the law.

Jocelyn Grey was a nurse applying for a job with Eastern Coastal and Kent Primary Care Trust, which ran NHS hospitals in the area. Grey was dyslexic, which made her disabled under the terms of the DDA.

Grey was interviewed for the job but was not given it. She took a case against the Trust but the Employment Tribunal said that she had not been discriminated against. That ruling did say, though, that the Trust had breached its duty to make reasonable adjustments for Grey's disability, and that it therefore discriminated against her.

The Trust took an appeal, saying that it was entitled to an exemption from those requirements because it did not know, and could not reasonably be expected to know, that she was disabled.

Grey did say in her application for the job that she had a 'learning difficulty/disability', and applied for a guaranteed interview under the Trust's 'positive about disability' scheme.

But when the time for the interview came the Trust asked did she require any special arrangements because of any disability, and Grey did not reply. The interviewing panel did not know anything of Grey's disability.

The EAT said that the Employment Tribunal made an error in considering the demands of the legal exemption involved.

The EAT ruling said: "In our view, [the relevant part of the DDA] means that an employer is  exempt from the duty to make adjustments if each of four matters can be satisfied and they 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."

"It is necessary to stress that these are cumulative and not alternative requirements and that is because of the use of the word “and” in two significant places," it said. "If the draftsman of this provision had intended the requirements to be alternative rather than cumulative, surely he or she would have used the word 'or' rather than the word 'and'."

The EAT said that it found that the Employment Tribunal did not follow these requirements exactly.

"We cannot be satisfied that if the Employment Tribunal had complied with its obligations in relation to [the law] it would have then  found in the respondent’s favour," it said.
It asked a new Employment Tribunal to re-examine the issue.

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