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• s4A(3)DDA applies if the employer knew/ought to have known that the employee was disabled and that his disability would affect him as per section 4A(1)
• Section 4A(3)(b)DDA is not to be interpreted cumulatively (Eastern and Coastal Kent PCT v Grey is no longer authority for this proposition)

The case of Eastern and Coastal Kent PCT v Grey [2009] IRLR 429 was referred to by the EAT. The EAT here decided that the requirements of section 4A(3)(b) do not need to be interpreted cumulatively.

Eastern and Coastal Kent PCT v Grey [2009]appeared to indicate that unless an employer qualifies in a cumulative manner section 4A(3) won't apply to him. But despite this being the case, the EAT referred the case back to a tribunal, indicating that the EAT had acted inconsistently with its own decision.

The EAT in DWP v Alam [2009] therefore reformulated the statutory interpretation of whether the exemption from the obligation to make reasonable adjustments provided for by section 4A(3) and 4A(3)(b) exists.

Two questions must be answered:
1. Was the employer aware that the employee was disabled and that his disability was liable to affect him in the manner described in section 4A(1)?
If the answer is 'no' then:
2. Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?

The employer will be exempt from making adjustments if the above two questions are answered in the negative.

The claim was dismissed (amongst other reasons) owing to the employer's ignorance of the extent and effect of the disability.

The transcript of this case follows:-   DWP v Alam [2009] UKEAT 0242_09_0911  (usually found at the Bailli or Employment Appeals websites)