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Employer exempt from duty to make adjustments for disabled employee

Posted by TonyBrownEmploymentSolicitor on February 2, 2015

The obligation to make reasonable adjustments for a disabled employee is one which many employers are familiar with. However, often the focus of attention is on the practicability of implementing the adjustment required and not on whether the duty to make reasonable adjustments in fact arises.

There is no duty to make reasonable adjustments if the employer does not know, and could not reasonably be expected to know, that the disabled employee is, or is likely to be, placed at substantial disadvantage by one of the employer’s workplace practices when compared with non-disabled persons.

In the next case, the EAT ruled that an employer was exempt from having to make reasonable adjustments when disciplining a disabled employee for leaving work early without permission, because the employer could not have known that the employee’s disability placed him under a disadvantage in having to request permission to leave work.

The Claimant in that case displayed symptoms of depression which, among other things, caused him to lose concentration and his temper. One day, the Claimant became stressed at work and left early without obtaining permission. At a subsequent disciplinary hearing, the employer took into account as mitigation that the Claimant had missed his medication that morning and felt agitated and unfit to carry on working but concluded that the Claimant’s action amounted to misconduct and issued him with a written warning.

The Claimant complained to a tribunal that the employer’s action in issuing him with a warning amounted to a failure to make reasonable adjustments.

The employment tribunal ruled that the employer had constructive knowledge from the symptoms that the Claimant displayed that he was disabled, the disability being depression. The tribunal also ruled that the Claimant’s difficulty in asking for permission to leave work early was an effect of his depression and that in issuing the warning the employer had failed to make reasonable adjustments for the Claimant’s disability.

The EAT allowed the employer’s appeal against the finding of disability discrimination.
Although the EAT agreed that the employer ought to have known that the Claimant was disabled based on his symptoms of depression, none of the Claimant’s symptoms implied difficulty in asking for permission to leave work. It could not be said that the employer ought to have known based on those symptoms that the requirement to obtain permission to leave work early put the Claimant at a substantial disadvantage compared to a non-disabled person. Accordingly, the EAT decided that the employer was exempt from the duty to make reasonable adjustments.

Comment
When deciding whether the duty to make reasonable adjustments applies, it is not enough that the employer knew, or ought it to have known, that the employee was disabled, if the employer did not know, and could not be expected to know, that the employee’s disability placed the employee at a substantial disadvantage in complying with the employer’s workplace practices.

In this case, the tribunal had leapt to the (incorrect) conclusion that the Claimant’s symptoms of depression would have made it difficult for him to ask for permission to leave work. The EAT decided that the requirement to obtain permission before leaving work did not disadvantage the Claimant more than it would non-disabled employees.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk
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