It is well known that before an employer can be found to have discriminated against a person based on his or her disability, the employer must first have actual knowledge, or ought to have such knowledge, that the individual was suffering from a disability in the first place. In this article we look at the latest case law in this area and what you as an employer can do to minimise the risks of a finding of disability discrimination against your company.
The law surrounding when an employer has knowledge of a disability has led to numerous challenges in the Employment Tribunals over the years. 2018 has started no differently, with two notable decisions released in the first three months of this year.
My colleague Susie Orton has previously covered the EAT case of Donelien v Liberata UK Ltd in which it was found that the Respondent company did not have knowledge of the Claimant’s disability, despite the occupational health reports being of a poor standard and omitting to answer key questions. Susie’s bulletin on the case can be read here and is a good guide for employers when taking into account occupational health reports.
The case of Toy v Chief Constable of Leicestershire Police is the second big judgment of the year from the EAT. The case, heard back in October 2017 with the judgment only just released on 9 March 2018, assists employers when statements are made by employees in in the late stages of a capability or disciplinary process. However, as advised below, the judgment should be treated with caution.
Mr Toy was a Police Community Support Officer for the Respondent. During his on the job training, it became apparent to senior management that Mr Toy’s attributes did not meet the standard required of the Respondent’s officers. Subsequently, an internal review and support procedure was put in place to assist the Claimant.
During the second of what we will class as capability meetings, the Claimant’s representative made mention that there was a “possibility” that the Claimant may be dyslexic. This was the first time that any mention was made regarding dyslexia, indeed the Claimant had previously passed the academic part of his training without any issues. During a subsequent meeting the Claimant also stated that he had a “strong belief” that he was suffering from dyslexia. The issue of dyslexia was again brought up in the third meeting, this time with the Chief Constable, however no evidence of the disability was ever provided.
Following the third capability meeting and in line with the Police Regulations 2003, the Respondent made the decision to dismiss the Claimant. As a result of the dismissal the Claimant brought a number of complaints to the Employment Tribunal, the main two of which we will focus on were disability arising from discrimination and failure to make reasonable adjustments.
The Employment Tribunal considered in great detail the scenario where a claim of being disabled is made by a Claimant (or his representative), without any evidence to confirm the same. In this scenario, does such a statement carry enough weight to put the onus of knowledge on the Respondent? Both the Tribunal and the Employment Appeal Tribunal felt that a mere possibility of an individual suffering from a disability was not enough to satisfy the test for knowledge. As the legal test for discrimination requires actual or constructive knowledge of the disability, the Claimant therefore failed in his claims of both disability arising from discrimination and failure to make reasonable adjustments.
As stated above, it is wise to treat this judgment with caution. The judgment relates solely to the facts of this case and I would be cautious about dismissing an employee who raises the possibility of a disability without first gaining occupational health advice on the issues. There can be a number of reasons why employees feel unable to raise the issue of disability with their employer. In particular, circumstances where a disability is not self-evident, so called invisible disabilities such as asperger’s syndrome or dyslexia, can be particularly difficult for an employee to relay to their employer and symptoms may only become apparent during stressful times such as disciplinaries or capability proceedings.
It is also worth noting that knowledge of a disability is not required for indirect disability discrimination claims. Any disadvantage or detriment suffered by the individual simply has to arise as a result of the provision, criteria or practice (PCP) put in place by the employer. However the employer may have a defence under the Equality Act 2010 if they can show that the PCP was not implemented with the intention of discriminating against the employee.
What should you be doing now?
Whilst the above case does give some relief to employers, it is always worth ensuring that managers and HR are aware of the latest developments regarding disability discrimination and are up to date on issues such as “invisible disabilities”. ACAS has produced free guidance for employers of all sizes on how to deal with disability in the workplace and it is worthwhile providing staff with regular updates in relation to the same.
What does this mean for you or your business?
Without repeating the advice given by Susie in last month’s bulletin, it is still the case that it is for an employer to decide, via fair means, whether an employee is disabled or not. The Respondent in the above matter took the risky position of proceeding to a dismissal without medical evidence. This was done as the employer was sceptical at the issue of disability being raised as such a late stage on proceedings. This will of course be a decision for the employer to take in any particular scenario, however I would always recommend taking legal advice before proceeding with such a course of action.
The full transcript of the EAT case can be read HERE
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.