Reasonableness of disabilities

The question as to when and how 'reasonable adjustments' for disability should be made has been exercising the Employment Appeal Tribunal and the courts. In one case (SCA Packaging v Boyle), Mrs Boyle developed nodules on her vocal cords - something not impossible in a school or college context.

After two operations and a strict vocal hygiene regime she appeared to be free of them. Some time after, the company decided to open up the office she worked in. Mrs Boyle considered that this might bring back her vocal disability.

The question was whether, since she was not suffering from the problem at the time, her case fell under the provision that her disability was 'likely' to recur and, even more intriguing for lawyers, whether 'likely' meant 'on the balance of probabilities'.

The House of Lords, now the Supreme Court, ruled it did not. Rather, the test is whether there is a risk of it recurring that would make it worthwhile for a doctor to prescribe a continuing course of treatment. For an employer the issue is whether the adverse effects are sufficiently likely to require consideration of what, if any, adjustment should be made to take account of them.

This all leaves the question of whether the employer actually knows that there is a problem. In another case (DWP v Alam - EAT 09), Mr Alam had been suffering from depression. His doctor said that this would affect his feelings.

However, the tribunal took the view that the question really was whether it affected his actions - especially when he left work without permission and contrary to instructions, to go to an interview for another, additional job.

The employer had been given no indication that his depression in fact was a disability and in a wonderful piece of legal English, the tribunal declared that "if the employer could not reasonably be expected to be aware of the relevant effect, the reasonableness of his ignorance would make it unreasonable to impose on him the duty to adjust."