Does an employer's failure to make an assessment of a disabled employee of itself amount to a failure to make a "reasonable adjustment"? If the answer is no that is an end of the matter but if it is yes, then the employer is in breach of the DDA 1995.
There have been conflicting decisions on the point but the EAT clearly ruled in the case of Tarbuck v Sainsbury’s Supermarkets Ltd in 2006 that the answer is no.
In the present case, an IT manager had become disabled and claimed that his employer had failed to make a reasonable adjustment by not obtaining and consulting on a medical report before dismissing him. It was argued on his behalf that the Tarbuck case had been wrongly decided or alternatively that it could be distinguished. He lost, but given that there are conflicting decisions of the EAT on the point and that it is of some importance, the EAT gave leave to Mr Spence to appeal to the Court of Appeal.
It is understood that the Disability Rights Commission will be seeking to intervene in the appeal to the Court of Appeal, as it is believes this case (and Tarbuck) to be wrongly decided.
Spence v Intype Libra Ltd
Thanks to www.emplaw.co.uk for giving me permission to adopt their summary of this case.