The Employment Appeal Tribunal gave guidance on the correct application of the provisions of the Disability Discrimination Act 1995 s.4A(3)(b) when determining whether an employer qualified for an exemption from the duty to make reasonable adjustments.

 

The appellant secretary of state appealed against a decision that he had failed to make a reasonable adjustment under the Disability Discrimination Act 1995 s.4A in relation to an employee (S). S had symptoms of depression which were detailed in a medical report and included loss of concentration, loss of temper and severe headaches. S was refused permission to leave the office early in order to attend an interview for a second job but left early nonetheless, informing his manager as he left. S was disciplined as a result and at the disciplinary hearing a number of mitigating factors were taken into account, including his medical condition. It was decided, taking into account all the facts, that the misconduct warranted a 12-month written warning. In concluding that the secretary of state had failed to make a reasonable adjustment, the tribunal found that the secretary of state had applied a provision, criterion or practice (PCP), which was that S had to either ask for and obtain permission before leaving his workplace or receive a written warning. It further found that the secretary of state ought to have known of the matters in the medical report, and that S had a disability that made him less able to control his feelings and actions, which meant that he could not control himself sufficiently to clearly ask for permission to leave work early and wait for an answer, and was therefore much more likely than a non-disabled person to receive formal disciplinary sanction. The tribunal determined that it had accordingly been the secretary of state's duty to refrain from giving S the written warning. The secretary of state submitted that there was no PCP, that the tribunal had failed to apply the provisions of s.4A(3) correctly, and that its reasoning involved drawing conclusions for which there was no evidential basis. S argued that knowledge of disability prevented an employer from being able to rely on the exemption from the duty to make reasonable adjustments under s.4A(3)(b).

HELD: (1) The tribunal's findings could have supported a conclusion that there was a PCP of instituting disciplinary action if an employee failed to get permission to leave work early, but it was not open to it to conclude there was a PCP that also involved the outcome of a written warning. The outcome of the disciplinary proceedings was not a foregone conclusion. The issue of the written warning was an option but its availability did not amount to a practice for the purpose of s.4A(1)(a). The fact that S was able to articulate his mitigation and that the decision had been reached after considering all of the facts indicated that the secretary of state's practice was to tailor the outcome of the disciplinary proceedings to the facts of each case. S had not demonstrated that the action complained of was a PCP. (2)(a) Eastern and Coastal Kent Primary Care Trust v Grey (2009) IRLR 429 EAT could not be taken as authority for the correct application of the provisions of s.4A(3)(b) because a final conclusion was not reached, the point being remitted to be determined by the employment tribunal, Eastern and Coastal considered; (b) it was clear, as a matter of statutory interpretation and giving the language of the provisions their ordinary meaning, that to ascertain whether the exemption under s.4A(3)(b) applied two questions arose; firstly, whether the employer knew both that the employee was disabled and that the disability was likely to affect him in the manner set out in s.4A(1). If not then the second question had to be asked, namely whether the employer ought to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in s.4A(1). If the answer to that question was also negative, then there was no duty to make reasonable adjustments. Thus the employer qualified for the exemption if both of the questions were answered in the negative, Ridout v TC Group (1998) IRLR 628 EAT applied. Knowledge of a disability would not in itself prevent an employer from being able to rely on s.4A(3)(b); (c) in the instant case, the first question had to be answered in the negative. The second question also fell to be answered in the negative as, whilst the secretary of state ought to have known that S was disabled, it could not be said that he ought also to have known that that put him at a substantial disadvantage as compared to a non-disabled person in relation to any PCP applied by the secretary of state. Even assuming that a PCP as identified by the tribunal was applied to S, there was no finding of fact that difficulty in asking for permission was a feature of S's disability. Although the secretary of state ought to have known that S had a disability as set out in the GP's report, it could not be concluded that he ought to have known that the disability had the effect to which the tribunal referred. The tribunal had erred in law in failing to correctly apply s.4A(3). (3) The tribunal had also erred in drawing conclusions about S's ability to control his feelings and actions for which there was no evidence. Its reasoning appeared to have been the result of speculation about what might have lain behind S's actions, but the tribunal was not entitled to engage in speculation.

Appeal allowed.