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21 January 2014

Employer’s knowledge of disability

The Court of Appeal has recently considered the question of when an employer’s knowledge of an employee’s disability arises, giving rise to the duty to make reasonable adjustments. Robert Hickford Looks at the decision.

An employer’s duty to make reasonable adjustments only arises if the employer knows, or can reasonably be expected to know, that the employee in question is suffering from a disability and is likely to be placed at a substantial disadvantage because of their disability.

This case was decided under the provisions of the Disability Discrimination Act 1995 (DDA), but the same principles will apply under the Equality Act 2010 following the repeal of the DDA.

Facts

In 2004, G informed his employer, Newport City Council, that he was suffering from work-related stress.  He was referred to be assessed by an external occupational health (OH) adviser, who concluded that whilst G was suffering from “stress-related symptoms”, there was no sign of clinical depression.

Over the next few years, G had a number of absences and was signed off with what the OH advisers categorised as a “stress-related illness” rather than a “depressive illness”.

G lodged a grievance, stating that his GP had diagnosed him with depression and alleging that the Council had not taken sufficient steps to ensure his health and safety at work.  The Council denied this and his grievance was rejected.  OH continued to assess G and informed the Council on two occasions that it did not consider him to be “covered” under the DDA.

G was eventually cleared to return to work, but he was subsequently suspended and dismissed following allegations of bullying.

G succeeded in his claim for unfair dismissal, but his claims of direct disability discrimination and failure to make reasonable adjustments were rejected by both the tribunal and the employment appeal tribunal.  The tribunal held that the Council was entitled to rely on the advice from OH that G was not “disabled”.  Even if he was in fact disabled, the Council did not have the requisite knowledge to engage its duty to make reasonable adjustments.

G appealed to the Court of Appeal.

Decision

The Court of Appeal upheld G’s appeal and remitted the case to the tribunal.

It held that the employment tribunal had not asked itself the correct question of whether the Council had actual or constructive knowledge of the facts concerning G’s disability.  Instead, the tribunal had accepted that the Council could deny knowledge simply by unquestioningly adopting the statement made by OH that G was not disabled.

The judge said that employers should make their own judgments as to whether an employee is disabled, particularly in circumstances where an external adviser concludes that an employee is not disabled.  The employer should not simply “rubber stamp” a medical adviser’s opinion that an employee is not disabled.

Comment

This case emphasises the importance of the employer asking specific practical questions about the nature of the impairment and its affect on the individual’s ability to carry out his or her job.  The appropriate questions to ask will vary according to the particular circumstances of each case.  The answers provided by medical specialists should inform the employer’s own judgement of whether the employee is disabled within the meaning of the Equality Act 2010.

A copy of the Court’s judgment is available here.