Disability

by Kate Russell

Employer’s knowledge of disability

The legislation means that 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 employer has a defence if he can show that he did not know and could not reasonably be expected to know that the employee had a disability.

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.