The importance of following the correct procedure when an employee discloses their disability

Preston v E.ON Energy Solutions Ltd provides a reminder that an employer cannot be liable for direct disability discrimination, discrimination arising from disability or failure to make reasonable adjustments unless it knew, or should have known, about the employee’s disability or the substantial disadvantage suffered by the employee as a result of the disability.

Preston v E.ON Energy Solutions Ltd

The employee (claimant) suffered from primary reading epilepsy (PRE), as a result of this condition, he suffered myoclonic seizures daily, often induced by reading.

The claimant worked as a customer services advisor, engaged on a contract with Manpower, before accepting direct employment with the respondent as a complaints resolution manager. Manpower knew of the condition the claimant suffered with, however, this information was not passed onto the respondent. The respondent sent a pre-employment health questionnaire to the claimant, but this was never returned to the respondent.

Subsequently the claimant was signed off sick with stress, unrelated to PRE. He refused to engage with measures put in place to secure his return to work. The respondent dismissed him because of his conduct in refusing to engage with such measures.

The claimant claimed disability discrimination. The Employment Tribunal (ET) found that he was disabled and his condition gave rise to a substantial disadvantage by reason of increased risk of suffering tonic-clonic seizures when reading.

However, crucially, the ET established that the respondent did not know of this and could not reasonably have been expected to have known of this until the claimant was on sick leave due to stress, not PRE.

At a result of this, it was found that the respondent did not have a duty to make reasonable adjustments before this time and the respondent then put in place enough measures after discovering the disability to satisfy the ET.

The claimant appealed the decision.

The appeal

Upon appeal, the Employment Appeal Tribunal (EAT) found that the tribunal had come to the correct decision and dismissed the claimants appeal. The claimant did not disclose any information such that the respondent to knew, or ought to have reasonably have known, of the substantial disadvantage suffered by the Claimant before he went on sick leave.

Therefore, the legal obligation to make reasonable adjustments was not placed on the respondent at this time.

The EAT also held that the dismissal was justified. It had been open to the ET to conclude that the claimant’s dismissal was a proportionate means of achieving the respondent’s legitimate aim, given his continued refusal to respond to reasonable management requests in circumstances in which occupational health had advised that he was fit to return to work.

Key points for employers

If an employee informs their employer that they are disabled then the employer must protect them from disability discrimination, including harassment and victimisation. The employee must be supported, including making reasonable adjustments to assist the employee. Employers should ask if anyone needs reasonable adjustments during the recruitment process.

For example, reasonable adjustments could be made when:

• A disabled employee or an individual applying to be an employee requests an adjustment
• The employer knows of the disability or could be reasonably expected to know
• A disabled employee is having difficulty exercising their role
• If an employee’s absence record (or delay to work) is linked to their disability.

If you have any questions about this article, please get in touch with a member of the employment team.