The ET found that R was not entitled to rely on the knowledge defence in DDA 1995, s.3 because it knew or could be expected to know of C’s disability . R appealed.
The Claimant suffered from dyslexia and was found to be disabled under DDA 1995, s.1. The Claimant was a well qualified nurse whose dyslexia was only diagnosed in 2005. She had reached the level of Junior Sister / Clinical Nurse Educator but was looking for ways to obtain promotion. She applied for another role with the Respondent as a community cardiac nurse. This role was at a higher grade.
In the application form the Claimant indicated that she had a “learning difficulty / disability” and applied for a guaranteed interview under the Respondent’s “Positive about Disability” scheme. The members of the interview panel were not told about the Claimant’s disability. The person overseeing the recruitment process was aware of the Claimant’s disability but made no enquiries about it and gave the panel no guidance.
The Respondent asked all 9 candidates for the interview whether they required any adjustments. The Claimant decided not to ask for any as she was confident that she would be able to perform well at interview. She did not wish the panel to take an adverse view of her because of her disability.
In the interview the Claimant was required to draft a presentation in a short period of time using a laptop. She commented that she normally used special software but did not say why. The Claimant did not get the job because she did not score well at interview.
The Tribunal at first instance found that the Respondent was not entitled to avail itself of the knowledge defence in DDA 1995, s.3 because it knew or could be expected to know of the Claimant’s disability .
The Respondent argued that the tribunal had erred in its approach to the DDA 1995, s.3. The EAT held that an employer is exempt from the duty to make adjsutments if each of the following four matters are satisfied:
(i) the employer does not know that the disabled person has a disability;
(ii) the employer does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
(iii) the employer could not reasonably be expected to know that the disabled person has a disability; and
(iv) the employer could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.
The EAT held that the tribunal had failed to consider all of the requirements (and particularly point (ii)) and so remitted the case to the tribunal for them to consider them.
This was one of the first cases dealing with the knowledge defence in reasonable adjustments cases. It sets out a helpful staged approach to the consideration of whether the employer had sufficient knowledge for the duty to make adjustments to arise.
The full transcript can be found here: Printable RTF version (http://www.bailii.org/uk/cases/UKEAT/2009/0454_08_2301.rtf)