For s4A(3) of the DDA to apply the employer must have known (or ought to have known) that the employee was disabled and that the disability would affect him in the manner described in section 4A(1)

DWP v Alam [2009] UKEAT 0242_09_0911

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05/12/2009

The claimant was refused permission to leave work early to attend a job interview but left work early anyway. He argued that his employer has discriminated against him in that whilst suffering from depression the employer gave the claimant a 12 month long disciplinary warning without making any adjustments to take account of the claimant's disability under the DDA 1995.


  • 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 EAT referred to the Disability Discrimination Act 1995 (DDA) which in subsection (3)states that:
"(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not be reasonably expected to know…
(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)."

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)


Some recent employment cases:-
2009
A discrimination case may not proceed on the mere possibility that evidence might emerge during cross examination - ABN Amro Management Services v Hogben [2009] UKEAT 0266_09_0111
In cases of discriminatory dismissal tribunals may reduce compensation if the worker would in any event have been dismissed - Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202
In cases of discriminatory dismissal tribunals may reduce compensation if the worker would in any event have been dismissed - Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202
It is possible to claim unfair dismissal abroad even if the workplace is registered outside the UK - Diggins v Condor Marine Crewing Services Ltd [2009] EWCA Civ 1133
Autoklenz 'Subcontractors' were employees - the contractual substitution clause was just 'window dressing' - Autoclenz Ltd v Belcher & Ors [2009] EWCA Civ 1046
Contract was ultra vires but employee still able to pursue unfair dimsissal claim under ERA 96 - Shrewsbury & Telford Hospital NHS Trust v Lairikyengbam [2009] UKEAT 0499_08_2108
Redundancies - ECJ rules that consultations do not need to begin until the parent company decides which subsidiary will be affected - Akavan Erityisalojen Keskusliitto AEK ry and Others v Fujitsu Siemens Computers Oy - ECJ [2009] Case C-44/08
ECJ rules holiday entitlement must not be lost through illness - Pereda v Madrid Movilidad SA - ECJ [2009] C-277/08
Costs follow lies (breaching confidentiality in a compromise agreement) - Dunedin Housing Association Ltd v. Donaldson - UKEAT [2009] 0014_09_0807
Pre-contractual negotiations can not be used as evidence for the meaning of a contract - Chartbrook Ltd v Persimmon Homes Ltd & Ors [2009] UKHL 38
Failure to fully exhaust statutory dispute resolution procedures means a claimant is barred from seeking redress in the courts - Booth v Oldham MBC [2009] EWCA Civ 880
Employers can not hide behind 'substantial equivalence' arguments to justify post TUPE contract changes - TAPERE v SOUTH LONDON AND MAUDSLEY NHS TRUST - [2009] UKEAT 0410_08_1908
The EAT rejects the refusing of the sole candidate for a job by citing conflict of interest and health and safety arguments - Amnesty International v Ahmed - [2009] UKEAT 0447_08_1308

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