Eastern and Coastal Kent PCT v Grey

The 1995 Disability Discrimination Act (DDA) requires employers to make reasonable adjustments for disabled job applicants in terms of any of their employment provisions or practices as well as any physical features of their premises. In Eastern and Coastal Kent PCT v Grey (IDS 875), the Employment Appeal Tribunal (EAT) said that the exemption from this duty only applies if employers can satisfy four different requirements.

Basic facts

Mrs Grey, a junior sister/clinical nurse educator, had dyslexia and was therefore disabled for the purposes of the DDA. She applied in May 2007 for one of five community nursing posts with Eastern and Coastal Kent PCT.

On the application form, she said she had a "learning difficulty/disability" and applied for a guaranteed interview under the "Positive about Disability" scheme. She also said on the form that she did not need any special arrangements to attend an interview.

The panel was not told about her disability, and the person overseeing the recruitment process did not ask her anything about it when he told her she had been shortlisted. When asked if she needed any special arrangements at interview, however, Mrs Grey said she did not.

On the day of the interview, Mrs Grey had to use a laptop to make her presentation (because of a problem with the projector). As a result, she needed special software but she did not explain to the panel that this was because of her dyslexia.

Mrs Grey scored the lowest mark of any of the candidates for her presentation and also did badly on the set questions. She was told that she had not been offered a post because she had interviewed badly.

She complained that the PCT had failed in its duty to make reasonable adjustments for her at the interview under section 4A(1) of the DDA. For its part, the PCT said it was exempt under section 4A(3), on the basis that it did not know she had a disability.

Tribunal decision

And the employment tribunal agreed with her that she had been discriminated against. It said that the information in her application form meant that the PCT had, in fact, been aware of her disability. It followed therefore “that had the members of the panel been made aware of the claimant's ability, they would have been aware that a candidate with a learning disability, for that is how the claimant's disability was described in the application form, would or might be at a substantial disadvantage at the interview"

EAT decision

But the EAT disagreed. It said that that there is an exemption from the duty to make adjustments if the employer:

  1. does not know that the disabled person has a disability
  2. does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled
  3. could not reasonably be expected to know that the disabled person had a disability; and
  4. 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 EAT stressed that these requirements were cumulative, not alternative, because of the use of the word "and" rather than "or". All four must therefore be established.

All the tribunal said in its decision was that the PCT "would have been aware". It did not say whether the PCT did "not know and could not reasonably be expected to know" that Mrs Grey 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.

The claim was therefore remitted to another tribunal to decide this.