Disability discrimination- knowledge of disability

31st December 2013 The Equality Act provides a statutory defence to claims of disability discrimination under Schedule 8, which effectively states that if the employer was ignorant of the disability then that employer could not discriminate against the employee on grounds of disability.

Under the Equality Act an employer obviously has duties to make reasonable adjustments for disabled employees, but that duty cannot arise unless the employer knows or is reasonably expected to know that the employee is suffering from a disabiility and as a result is likely to be placed at a substantial disadvantage unless the adjustments are made. The problem is this, does the employer have to know that the employee has a certain medical condition or conditions, or actually know that the condition(s) amount to a disability under the legislation before the duties are triggered? A recent case in the Court of Appeal illustrates the problems that employers can find themselves in over this issue.

The case of Gallop v Newport City Council involved an employee that had taken significant time off work. He originally was referred to Occupational Health over signs of stress. He took time off due to stress-related symptoms, but was not diagnosed with clinical depression. Efforts were made to adjust the employee's workload, but he had further sickness absences of months at a time, between short periods of work. Several reports were received from Occupational Health advisers, both of whom stated that the employee was not disabled. However, the employee returned to work, but was then the subject of complaints of bullying by other colleagues. He was dismissed. He brought claims of unfair dismissal and disability discrimination in the Employment Tribunal. The Tribunal rejected the claim sof disability discrimination noting that the the Council did not know he was disabled- relying on the reports they had received from Occupational Health on this point. This decision was challenged by the former employee.

In the Court of Appeal it was noted that the employer needs to know of the facts contituting the disability. The employer does not need to know, as a matter of law, if as a consequence of those facts the employee is actually disabled. The Court noted that the employer in this case had failed to consider the known facts in this manner. The employer could not simply rely on the report from its Occupational Health advisers in seeking to avoid liability for disability discrimination. 

This case shows that determining whether an employee is disabled or not is often problematic, particularly where the issue is one of mental health.The Court observed that it was correct for the employer to seek medical advice regarding the employee and his condition, but that the employer must then make its own decision on the facts presented, rather than simply rely on the report of the Occupational Health professionals. It is for the employer to make the factual judgement as to whether or not the particular employee is disabled or not. The Judge in the Court of Appeal indicated that employers when seeking medical professional advice should pose specific questions on the particualr circumstances of the employee and his/her condition rather than ask in general terms if that employee is disabled or not.

Employers should therefore still seek medical advise in such cases, but should ultimatley ensure that they reach their own decision on the facts. It is probably safer for employers in any doubt to proceed on the basis that the employee probably is disabled and go on to consider reasonable adjustments etc.

At Hallett Employment Law Services we can help you with dealing with appropriate procedures and addressing the issue of adjustments. If you need further advice or assistance on this matter please do not hesitate to contact us.