LET ME GO
Date: March,2010
Author: HReSource
© R2b media Ltd 2008. HReSource™
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.
What happened?
Mr Alam, an administrative officer for the DWP, suffered from depression. On 7 March 2008 he left work early without permission. Following a disciplinary hearing, he was given a 12-month written warning. He then argued that his employers should have made a reasonable adjustment for him as required under the DDA.
The tribunal agreed 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 provision, criterion or practice 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.
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 - firstly, whether the employer knew the employee was disabled and their disability was likely to put them at a disadvantage with people who are not disabled? If the answer is no, then the second question to ask is whether the employer ought to have known?. If the answer to that question is also no, then there is no duty to make reasonable adjustments.
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 adjusments.
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