Veitch Penny LLP - Exeter | Crediton, Devon

Case

Secretary of State for Work & Pensions –v- Alam
Employment Appeal Tribunal – 9 November 2009

Issues

(1) Disability Discrimination Act (“the Act”)
(2) Disciplinary warnings
(3) Reasonable adjustments

Facts

Mr Alam was employed as an administration officer. He suffered from depression which the employer, during the course of proceedings, conceded constituted a disability for the purposes of the Act. He suffered from severe headaches and would lose concentration and his temper easily.

In March 2008 Mr Alam advised his manager that he would be arriving late for work. As planned, he arrived late and then asked his manager if he could leave two hours early at 4 p.m. so that he could attend an interview for a second job. He was in financial difficulties and was anxious to obtain a second source of income. His manager refused to let him leave as he requested. Later, he spoke to a more senior manager who also refused. He became stressed and anxious and left work at 5 p.m. to attend the interview.

Mr Alam was subsequently disciplined and given a 12 month written warning. During the course of the disciplinary proceedings, he made his employer aware of the health issues and that he had not taken his medication that morning. These points were taken account of in mitigation but were not investigated further.

At the Employment Tribunal he was successful with his claim on disability discrimination. It found that the employer did not make reasonable adjustments in giving him a written warning. The employer should have known that he had a disability and that his difficulty in asking for permission was an effect of that disability.

The employer appealed the matter to the Employment Appeal Tribunal (EAT). It had to consider whether the employer fell within the exemption from the duty to make reasonable adjustments under the Act. There were two issues to consider:

(i) whether the employer knew that the employee was disabled and that the disability led to the effect alleged or
(ii) whether the employer ought to have known about the disability and its effect.

Decision

The appeal was allowed.

This case overruled the original test set down in Eastern & Coastal –v- Kent replacing it with a twofold test, namely:

(i) Did the employer know that the employee was disabled and that his disability was liable to place him at a disadvantage? If the answer to that is no, then the second question arises, namely:
(ii) Ought the employer to have known both that the employee was disabled and the disability was liable to place him at a substantial disadvantage? If the answer to the second question is no, there is no duty to make reasonable adjustments.

Comments

The EAT found that the employer did fall within the exemption and no duty to make reasonable adjustments arose. Although it ought to have known that Mr Alam was disabled, it ought not to have known that his disability would have placed him at a disadvantage. There was no evidence to suggest that difficulty in asking for permission was a feature of his disability. The Tribunal had speculated as to the extent of effect of the disability on his ability to ask for permission to leave work.