The Disability Discrimination Act is still much talked about and there is a never-ending supply of new cases on the subject.

The Disability Act is limited by Section 6 which provides that there is no duty imposed on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know, that that person has a disability and is likely to be placed at a substantial disadvantage in comparison with other people in the workplace who are not disabled.

In a recent case, issues were raised as to what an employer can be reasonably expected to know. The applicant in this case stated in her medical questionnaire, prior to interview, that she had photosensitive epilepsy, which was controlled by medication. She was not contacted about interview arrangements and when she went to the interview the interview room had bright fluorescent lighting. When she entered the room wearing sunglasses around her neck she made some comments to the effect that she might be disadvantaged by the lighting. However the employers considered that this was an explanation for her sunglasses around her neck.

The lady in question never used the sunglasses during the interview and did not tell her prospective employers that she was in any way unwell or felt disadvantaged during the interview.

She then made a complaint under the Disability Discrimination Act that the employers had failed to make reasonable adjustment to the physical features of the interview room.

Her claim was dismissed and the tribunal said that the applicant could have been much more forthcoming about what she required for the interview. She appealed and her appeal was also dismissed on the grounds that the applicant had a very rare form of epilepsy and that no reasonable employer could be expected to know, without being told specifically by the applicant, that the arrangements which were made for interview might disadvantage her. Given that the employers knew that the applicant had a disability this seems to be a very restricted interpretation of the extent to which the employer has a proactive duty to determine whether an adjustment should be made.

In this case it was emphasised that best practice for all employers is to always refer to the Code of Practice for guidance, however, under the Act itself it provides that an employer is not under any obligation to make an adjustment if he does not know, or could not reasonably be expected to know, that a person has a disability likely to place them at a substantial disadvantage. However, it then goes on to state an employer must therefore do all he could be reasonably expected to do to find out whether this is the case.

At a minimum I would suggest this means that once the employer knows that a person selected for interview has a disability it is reasonable to expect the employer to contact the employee to inquire about any adjustments that might be needed. It is therefore, in my view, a case that employers should treat with caution.

Julia Lister is a company commercial partner with law firm Gordons Wright & Wright. She also heads the firm's Keighley office.

Converted for the new archive on 30 June 2000. Some images and formatting may have been lost in the conversion.