In certain types of disability discrimination claims, the level of knowledge about the individual’s disability can be critical to having a defence or not. When this issue arises there are two ways in which you can ‘know’ about an employee having a disability:-
- actual knowledge – this is where the organisation is aware of the disability; or
- constructive knowledge – this is where the organisation should be aware of the disability through warning signs such as long pro-longed sickness absences etc.
A case example
In the recent case of A Ltd v Z, the Tribunal considered the level of knowledge that the employer had about the employee’s disability.
The employee suffered from stress, depression, low mood and schizophrenia; all of which she concealed from her employer. When she was off work due to these she would tell them that it was for physical reasons instead.
As a result of her poor attendance and timekeeping, she was dismissed. It was only at this point that she informed her employer that both of these issues were attributable to her mental disabilities.
At Tribunal, the employer (and employee) accepted that she was disabled for the purposes of the Equality Act 2010.
The Tribunal made findings that the employer had constructive knowledge of the employee’s disabilities (but not actual knowledge), because of her numerous spates of ill-health and were therefore liable for disability discrimination. As a result of these ‘warning signs’, the company should have made further reasonable enquiries to discern whether the employee was disabled and required reasonable adjustments. However, the Tribunal also found that had the employer made those further enquiries, the employee would have continued to suppress the information regarding her mental illness and would have refused an occupational health referral.
The employer appealed to the Employment Appeal Tribunal where they were successful in overturning the original judgment on the basis that they would have been left in no better position even if they had made further enquiries about the employee’s health.
What are our thoughts?
Health and disabilities are always sensitive and often difficult subjects to talk about. Individuals with disabilities, especially those that are perhaps not visible, can be good at concealing them or attributing time off to physical ailments to avoid any stigma or embarrassment. However, organisations must continue to be vigilant and if you suspect that an individual might have a disability then you should make reasonable enquiries as to what, if any, disabilities they have as this may give rise to other duties, such as making reasonable adjustments.
It is also incumbent upon all employers to ensure that you make decisions based on facts and relevant medical evidence that you have. To make decisions without this could land you in hot water.
If you do have individuals who you suspect may be disabled or concealing a disability from you and you would like some further advice as to how to progress this matter, please do not hesitate to contact any of our team in Employment.
If you would like further information about this topic, please get in touch firstname.lastname@example.org