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| A nurse with dyslexia applied for a job indicating on her application form that she had a learning disability. She did not mention again at interview the fact of her disabilities and these were subsequently not accommodated. Difficulties she encountered at interview resulted in the job going to another candidate. The EAT says that an employer can't simply turn a blind eye to possibilities of discimination at interview. In order to have a defence the employer must be pro-active and satisfy a four stage test. | ||
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The duty to make adjustments is set out in section 4A of the Disability Discrimination Act 1995: “(1) Where – (a) a provision, criterion or practice applied by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect." Mr Justice Silber stressed that tribunals need to follow the statutory wording carefully rather than paraphrase them, that an employer will be exempt from the duty to make adjustments only if each of the following four points mentioned in section 4A(3)(b)DDA are satisfied. The requirements are cumulative and not alternative. An employer will only have a valid defence to not having made the proper adjustments if he:-
(a)does not know that the disabled person has a disability; If the employer can show some but not all of the above are true for him, then an ET will be open to finding in a case of disability discrimination that the employer did not have a valid defence, and discriminated against the worker. The EAT supported recommendations from the ET's judgment as to the steps which the interview panel in this case might have taken:- “including giving the claimant more time without penalty, taking care that she was not unduly stressed, assisting the claimant by prompts or clarification of the questions, avoiding multiple questions, putting a written copy of the questions before the claimant, and taking the disability and its effects into account when scoring the claimant” The EAT has ordered the case be reheard in another ET.
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