Let me go

Secretary of State for the Department for Work and Pensions v Alam

Under the 1995 Disability Discrimination Act (DDA), employers have to make reasonable adjustments in certain circumstances. In Secretary of State for the Department for Work and Pensions v Alam, the Employment Appeal Tribunal (EAT) said that employers do not have to make adjustments if they knew or ought to have known about the employee’s disability, but did not know and could not be expected to know that it would have a specific effect on them.

Basic facts

Mr Alam, an administrative officer for the DWP, suffered from depression. On 7 March 2008 his manager was aware he would arrive late for work, but refused to allow him to then leave the office early to go for an interview for a second job. He asked a more senior manager who also refused. He then became very stressed and left early without permission.

Following a disciplinary hearing on 19 March at which he explained that he was under considerable financial pressure and that he was taking anti-depressants, he was given a 12-month written warning. He then argued that his employers should have made a reasonable adjustment for him under section 4A(1) of the DDA.

Relevant law

Section 4A(1) states that if an employer applies a provision, criterion or practice (PCP) which puts the disabled person at a substantial disadvantage with people who are not disabled, they have a duty to do what is reasonable “in all the circumstances of the case” to prevent the PCP from having that effect.

However, section 4A(3) states that the duty is lifted if the employer did not know and could not reasonably be expected to know that the person has a disability and is likely to be subjected to a substantial disadvantage as a result.

Tribunal decision

The tribunal said that Mr Alam was disabled and that the DWP should have known this by March 2008. It had indirectly discriminated against him by applying a PCP that “he should either ask for, and get permission from his line manager before leaving his workplace or receive a disciplinary sanction of a twelve month written warning.”

It held that Mr Alam’s disability affected his ability to regulate his feelings and he was therefore less able to control himself than a non-disabled person. As he could not control himself enough to clearly ask for permission to leave, he was much more likely than a non-disabled person to receive a formal disciplinary sanction.

EAT decision

But the EAT disagreed. In deciding whether the DWP was under a duty to make reasonable adjustments, it said that two questions had to be answered. They are:

1. Did the employer know that the employee was disabled and that their disability was liable to affect them in the manner set out in section 4A(1)? If the answer to that question is: “no” then there is a second question, namely,
2. Ought the employer to have known that the employee was disabled and that their disability was liable to affect them in the manner set out in section 4A(1)?

If the answer to that second question is “no”, then the section does not impose any duty to make reasonable adjustments. In other words, the employer qualifies for the exemption if they answer both those questions in the negative. (Note, presumably question 2 will also cover those situations where the employer knew of the disability and ought to have known of its effect; and where the employer ought to have known of the disability and did know of its effect.)

In this case, the EAT said that the answer to the first question was “no” as the DWP had not known that Mr Alam was suffering from depression and did not know it was liable to have any effect on him. As for the second question, although the department ought to have known that he had a disability (i.e, depression) which meant that he sometimes had difficulty in concentrating or controlling his temper, “none of those features amount to or imply difficulty in asking for permission when it was required”.

So the DWP could not reasonably be expected to have known that Mr Alam’s depression would have this specific effect on him and it had no duty to make reasonable adjustments.