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Is there a duty to make reasonable adjustments for an employee that fails to disclose their disability?

30th August 2019

We have written a number of articles on the question of liability for disability discrimination, and the question of whether the employer had knowledge of the disability. A recent decision in the appeal courts examines the question of liability where the individual had in fact failed to disclose the disability to their employer, and yet subsequently brought a claim of disability discrimination against that employer.

In many cases there is no real doubt about a person’s disability. For example, an employee that is a wheelchair user hardly needs to explain how they are or might be disabled to their employer. However, not all medical conditions may be obvious and apparent to the employer. In addition, for various reasons an individual may not want to disclose the fact of a disability to their employer- egs. for fear of being stigmatised or perhaps overlooked for any promotion or job development opportunity, or for fear of being labelled or treated as being “unreliable” in some way. These can all be genuinely and honesty held fears. However, this can in turn result in the employer being unable to offer the support and assistance that a disabled employee may need. The whole issue does have significance when one considers the purpose and the requirements of the Equality Act 2010. Clearly a sensible employer will seek all they reasonably can do to help a disabled employee meet their full potential in their work; after all that is good for both the employer and the employee. However, what happens if the individual denies or fails to disclose their disability, or fails to co-operate with the employer?

Clearly some illnesses will get progressively worse over time, or be made worse by some intervening event or development. Employers need to be aware of this possibility, and so should not try to rely on medical reports or opinions that are old (we highlighted the risks of this in the report on the case of Gallop v Newport City Council in 2013). While employers are not expected to carry out exhaustive enquiries, they are expected to make reasonable enquiries into the individual’s situation (see our article on Donelien v Liberata UK Ltd – March 2015).

The Equality Act 2010 states that an employer cannot be liable for an alleged act of disability discrimination if they did not know “and could not reasonably have been expected to know” that the individual had a disability. The established case law has shown that the employer need not have constructive knowledge of the individual’s actual medical diagnosis. There need only be actual or constructive knowledge as to the disability itself, not of the actual technical diagnosis and not of the causal link between the disability and its consequent effects which led to some form of unfavourable treatment at work. The relevant Code of Practice covering this issue states that:-

“it is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know it.”

It further states:-

 “employers must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment.”

Of particular significance in the present case the Code states that; “When making enquiries about a disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.” The Employment Tribunal will have consideration and regard to the business needs of the employer, including the size and resources of the business.

You can see from the case law and guidance in the Code, that an employer faces significant problems in assessing the situation, and determining if the individual is disabled if the individual fails to fully co-operate with the enquiry into their true medical condition.

The case of A Ltd v Z involved an employee that suffered from mental health and psychiatric impairments, notably stress and depression. She had a personal history of mental health problems. She took many days off work, routinely attributing them to physical ailments. She deliberately chose not to inform her employer that the absences were linked to any mental health condition. During 14 months employment she took 85 days off as unscheduled leave, of which some 52 were recorded as sick leave. Her employer sought to meet her to discuss the absence record. Although she referred to problems with her son, and some other physical problems, she did not mention her own mental health problems. Eventually she submitted some notes from her GP which mentioned “mental health and joint issues.” She was then signed off work for three weeks. When the individual returned to work, slightly late, she was dismissed due to her poor attendance record and timekeeping. The truth was that her poor attendance record had arisen as a result of her mental health issues, but that is not how it had been explained to her employer. A claim was then brought in the Employment Tribunal, alleging that she had been the victim of disability discrimination.

The Employment Tribunal that heard the case concluded that the employer di not have actual knowledge of the disability, but that they did have “constructive” knowledge, and her claim succeeded. The employer knew nothing more than the fact she had some personal problems and had suffered some amount of stress as a result. The Employment Tribunal concluded that the employer should have made further enquiries with the individual about her state of health, and felt that they had “constructive” knowledge of her disability at the time. The employer appealed against the decision of the Employment Tribunal.

In the Employment  Appeals Tribunal (EAT) it was concluded that the Employment Tribunal had failed to address the crucial question of what the employer ought to have known of the employee’s condition. Considering that the Employment Tribunal itself had concluded that had further enquiries been made by the employer of the employee’s health, the employee would still have suppressed information about her actual state of mental health and would have refused a referral to their Occupational Health service, it was clear that the employer could not have had constructive knowledge of the disability. The Employment Tribunal had noted that, even acting reasonably and with regard to the employee’s dignity and privacy, she would not have fully disclosed the real state of her mental health. On that basis the EAT overturned the earlier decision of the Employment Tribunal. The EAT noted that in the circumstances it was not reasonable for the employer to know the actual impediment to her mental health, the fact it was substantial or the fact that it was likely to have a long- term effect.

Reference was made in the EAT to previous cases, which indicated that it is not incumbent on employers to make every enquiry. There was also mention of the clear and logical reliance that an employer has to place on the reasons for absence given to them by the employee concerned.

Cases like this can be problematic for employers. It is inevitably difficult for any employer to provide full help to an employee that fails, or for any reason refuses to disclose the actual nature of their disability. The case also highlights the need to be open and clear about medical issues in the workplace, and to ensure that staff feel able to come forward with the details of health problems in a confidential manner and without being stigmatised. Employers cannot simply ignore an accumulating amount of evidence that points towards some underlying illness or health condition, but they need to be open to discuss concerns they have with their employees.

We can help in providing guidance as to how to address such problems or concerns with a member of staff, and provide the appropriate procedures for handling these situations.               

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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