Disability can be difficult to identify. In a recent case, a highly successful nurse who was interviewing for a promotion deliberately said that her disability (dyslexia) did not require the interview panel to make any special arrangements for her.
The interview was a disaster and a dyslexia specialist gave evidence that this was predictable as a result of her disability. The Primary Care Trust argued that the panel were unaware of these difficulties and that they could not be held to be responsible for discrimination if they did not know there was a disability.
The employment appeal tribunal overruled a tribunal decision and have made it clear that the test for ignorance is a stringent one. To be able to claim ignorance of a disability, the employer must:
not know about the disability
not reasonably be expected to know about the disability
not know that the disability would disadvantage an interviewee
not reasonably be expected to know that the disability would disadvantage an interviewee
These conditions are cumulative, not a menu of options. All have to be operating if the employer is to claim ignorance. This does not only apply to employment. It would also apply if a school were to claim ignorance of a condition in an exclusion case.
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