Disability

by Kate Russell

Employer’s knowledge of disability

An employer cannot treat a disabled employee in a way which, because of the employee’s disability, is to his detriment and which cannot be objectively justified.

The Equality Act 2010 provides that an employer is not liable for disability discrimination if it did not know or could not reasonably have been expected to know about a person's disability. The latter defence only applies in claims where there is a duty to make reasonable adjustments or where the discrimination is "arising from" disability. It does not apply to claims of direct or indirect disability discrimination, harassment or victimisation.

So where the disability is not obvious or the employer cannot reasonably be expected to have knowledge of it, can an employer be liable? It seems the employer can be liable if the disability and worker’s treatment are related.

Example

K was off work on sick leave for a lengthy period. The cause, diagnosis and prognosis were unclear. He attended an interview with the employer, whose medical advisor had indicated that K was not fit to return to work. K told the employer he was due to see a specialist and asked him to wait for the result of that meeting before deciding whether or not to dismiss. The employer refused and dismissed K next day. Shortly afterwards K was diagnosed with Chronic Fatigue Syndrome. The court decided K had been discriminated against even though the employer didn’t know at the time that he had a disability.

Constructive knowledge

Note that you may be expected to know about a person’s disability by putting together certain relevant facts. Ensure that, where information about disabled employees may come though different channels, there is a suitable and confidential process for bringing such information together. You can ask about disabilities as part of the recruitment process provided you don’t discriminate unjustifiably.

Example

H suffered from a psychiatric condition that could be controlled by medication. When she was interviewed for the position, one member of the interview panel was someone who had known her for some time. She did not specifically disclose her condition to the DWP and declined to provide any information about her long-term condition in her health declaration form. She also refused permission for the DWP to contact her doctor.

Shortly after starting work, H was involved in arguments with other members of staff after which she was issued with an oral warning for misconduct, and informed that disciplinary action would be taken if she failed to maintain required standards of conduct. She subsequently applied for a disabled person’s tax credit from the Inland Revenue and presented the application form to her manager who passed it on to DWP’s HR department.

As a result of later incidents (both verbal and physical) between H and other members of staff, H was suspended and dismissed following a disciplinary hearing. The reason given for the dismissal was that she had failed to comply with departmental standards of behaviour by repeatedly refusing to comply with reasonable management requests and acting in a ‘rude and threatening’ manner. Her appeal against dismissal was rejected.

H complained successfully to an employment tribunal that she had suffered disability discrimination and that the DWP had failed to make reasonable adjustments. Her claim was upheld and the court said that the DWP had constructive knowledge of her psychiatric condition for the following reasons:

  • H’s negative replies in the health declaration form and refusal of access to her doctor or medical records, coupled with her volatile behaviour, should have been a ‘warning sign’ to the DWP
  • A member of the interview panel knew H but did not mention anything about her health or disability
  • No further enquiries had been made following H’s application for disability tax credit.

You have more scope to ask questions about any potential disability during employment. Indicators may appear during employment which may suggest that an employee’s health is impacting their work. Each case is fact specific but this can include a reduction in performance, allied to absences and concerns raised by fellow colleagues about an individual’s behaviour. It is sensible as part of any investigation to ask questions to try and elicit if there is any underlying disability.

It is clearly important to obtain an occupational health (OH) report. However the courts have stressed that it is for the employer to decide whether an employee has a disability, not OH. The employer should provide OH with a detailed letter of instruction with specific questions asking OH to address the terms of the statutory definition of disability. The employer should provide additional information to help the OH assessment such as the employee’s job description and other information that the employer considers is relevant in the particular case.

Normally if OH suggest that the person has a condition that appears to be a disability then most employers will accept this. The major risk for employers is blindly accepting an OH report which suggests that an employee is not disabled and which contains little or no reasoning and/or does not address the definition of disability. An employer should go back and ask OH to clarify the report and also investigate any other related issues. It should pull together all relevant and disclosable information in considering this issue. If it does not do so then it leaves itself open to the allegation that it cannot rely on the statutory defence that it has not done all that it could reasonably be expected to do to determine if the individual does have a disability.

Example

Mr Gallop was an employee of Newport City Council. He complained of work related stress. The Council’s OHA assessed Mr Gallop and advised he was suffering from a stress-related illness but said he was not disabled because he was not suffering from a depressive illness.

During the next two years Mr Gallop took long periods of absence due to work related stress. The employer asked the OHA during this time whether he was disabled and were told that it was not. It did not provide any supporting reasons for this opinion. The employer eventually summarily dismissed Mr Gallop for gross misconduct.

Mr Gallop made a claim for unfair dismissal and disability discrimination. The tribunal found that he was disabled for the purpose of the legislation but his claim was dismissed on the finding that the local authority didn’t have constructive knowledge of that disability. Mr Gallop appealed this decision. The Employment Appeal Tribunal said that the local authority was entitled to rely on the advice of the Occupational Health advisers.

Mr Gallop appealed to the Court of Appeal. The Court found that to be answerable for disability discrimination against an employee, the employer has to have actual or constructive knowledge that the employee is disabled.

That knowledge was of the facts constituting the employee’s disability as identified in the EqA, that a) a physical or mental impairment, which has b) a substantial and long term adverse effect on c) his ability to carry out normal day to day activities.

Provided the employer had actual or constructive knowledge of those facts, it did not need to know whether as a matter of law that the employee was a ‘disabled person’ as defined by the Act.

The case shows that the employer has to make a factual judgment on whether the employee was disabled rather than relying on an opinion that he was not, despite this coming from external medical advice.

It is common for employers to obtain advice from OH on matters regarding disability. It is advisable for employers to ask specific questions when seeking advice from OH and not ask just in general terms. The questions should be directed to the particular practical circumstances of the putative disability. However, you will need to focus on what the key factual requirements are for establishing disability and if these are met. If they are, then the employer should proceed on the basis that the employee is disabled, regardless of the opinion from OH as to whether the employee falls within the definition.

There is a helpful Code of Practice on the Equality Act and a supplement which is updated to take account of subsequent case law. Whilst a tribunal can take the Code’s terms into account it is not authoritative as only an employment tribunal can decide the issue.

You have to act reasonably in deciding if someone might have a disability. It is not difficult or time consuming for an employer to ask OH if it has any information which the employee has agreed to disclose. If so it should be disclosed. If you do not ask that question and it transpires that the employee consented to the release of the information then the Employment Code of Practice indicates that you will have no defence and be deemed to know of the employee’s disability if the medical information is important to determining the issue.

Consent for Medical Information Refused

The position is different if employees refuse to provide their consent to the disclosure of information of which the employer is unaware. You should also ensure that it has asked employees to undergo all relevant medicals and to disclose all relevant information including asking if they have consented to OH passing on information as a double check.

Example

Ms Donelien was employed by Liberata for nearly 11 years as a court officer. She was dismissed for persistent short-term absences and failing to comply with the absence notification procedure. She gave several different reasons for her absences including stress, anxiety and hypertension. Before it took steps to dismiss her, the company made specific efforts to determine the precise analysis of Ms Donelien’s health. It

  • engaged with her GP
  • held a large number of meetings with her to discuss her conditions and arranged return-to-work meetings, and
  • made a referral to OH asking a number of questions, including whether Ms Donelien had an underlying condition which could explain her absences. The OH report stated that Ms Donelien was not disabled but it did not answer Liberata’s specific questions. Liberata followed up once but a further, more detailed report again failed to sufficiently answer the questions posed.

Ms Donelien submitted claims to an employment tribunal arguing that the company had failed to make reasonable adjustments.

The tribunal concluded that Ms Donelien wasn’t disabled at the time of the first OH referral but was a month later. Both sides acknowledged that Liberata had no actual knowledge of Ms Donelien’s disability, but the issue was whether Liberata had constructive knowledge of the disability, i.e. whether Liberata could reasonably have been expected to know about the disability. The tribunal concluded that Liberata had done all that could reasonably have been expected to discover whether Ms Donelien was in fact disabled. She appealed, essentially arguing that Liberata had relied too heavily on the OH report and should have done more to find out whether she had a disability.

The EAT dismissed her appeal. It acknowledged that Liberata faced difficult questions, in particular the fact that there was not one single health condition to consider. Ms Donelien gave various reasons for her sickness absence and they were not obviously related. The EAT also acknowledged that in this case it was difficult for Liberata to untangle the work that the employee could not do due to her medical conditions and the work that she would not do.

Liberata had made its own decision as to whether Ms Donelien was disabled and did not simply defer to the OH report. The EAT acknowledged that Liberata could have asked more questions of OH, but this was not determinative as Liberata had made other enquiries at return-to-work meetings and in correspondence with the GP, which was enough to satisfy the EAT. Ms Donelien appealed.

Ms Donelien’s appeal was dismissed. The issue for the tribunal was, as the Court of Appeal stressed at the outset, what Ms Donelien’s employer could reasonably have been expected to know.

Referring to the letters received by the employer from her GP, the court commented that these did not give a consistent picture; indeed ‘it is hard for a layman to know what to make of all that’. As to the role of OH, the court commented that it was reasonable for the employer to take the position that any communications with Ms Donelien’s GP should be via their OH service. Ms Donelien’s position was not helped by the fact that she refused to allow the OH service to contact her GP. This clearly went in her employer’s favour when looking at the reasonableness of lack of knowledge.

The Court of Appeal made it clear that where an employer makes some adjustments to alleviate an employee’s difficulties (here it was allowing Ms Donelien to start work later in the mornings) it doesn’t necessarily require the imputation of knowledge of the elements of disability.

The Court of Appeal’s remarked that the [employer] was presented with a good deal of not very clear information, and getting a good understanding of it was not helped by [Ms Donelien’s] rather uncooperative and confrontational stance ... not all of [Ms Donelien’s] absences reflected her being truly unable to work: there was an element of unwillingness too, mixed in with her substantive complaints about pay and working conditions ... the [tribunal] had to disentangle what [Ms Donelien] could not do from what she would not do. This is not an easy exercise: employers are not doctors.

In claims for a failure to make reasonable adjustments or discrimination arising from disability the onus is on you to take reasonable steps to try and ascertain if the individual has a disability where this is not clear. If it meets that test and could not reasonably be expected to know then that will normally provide a defence.

You don¬ít have to take every possible step to find out whether an employee is disabled, only reasonable steps. It can be extremely difficult to establish whether an employee is disabled, particularly where short-term, persistent absences are concerned. Seeking help from OH is recommended but, as this decision and others before have highlighted, it’s up to you to make a decision as to whether an employee is disabled.