Knowledge of Disability

The Equality Act 2010 places a duty on employers to make reasonable adjustments for employees who have a disability within the meaning of this legislation.  The duty arises where a provision, criterion or practice applied by the employer puts the disabled person at a substantial disadvantage in comparison with those who are not disabled.

Importantly, the duty to make reasonable adjustments is only triggered where the employer has actual or constructive knowledge of an employee’s disability.  This article focuses on constructive knowledge and, specifically, when an employer could reasonably be expected to know of a disability.

In a case before the Employment Appeals Tribunal (EAT) an employee had been dismissed after 11 years of service for persistent short term absence and failure to comply with the company’s absence reporting procedures.  The employee claimed that she suffered from a number of conditions such as hyper-tension and work related stress.  In her final year of employment; having taken 128 days of absence, she had also suggested that she suffered from viral infections, dizziness, head colds, risk pain and stomach upsets.

Whilst the employee refused consent for the employer to approach her GP, she was referred to Occupational Health.   The subsequent report suggested that she was not a disabled person but did not answer all of the employer’s questions in detail.  However return to work meetings and eventual engagement with the employee’s GP did start to pose more questions about whether she had a disability.   The employee was eventually dismissed and brought a claim alleging, amongst other things, that the employer had failed to make reasonable adjustments.  The employer’s defence was that it did not have actual or constructive knowledge of her disability.  Whilst the EAT suggested that the employer could have followed up certain questions which were not answered in the Occupational Health report, the overall efforts made by the employer to ascertain the position on disability meant that it could not be deemed to have constructive knowledge.

If it is the case that the employer simply defers to the Occupational Health Advisor on the question of disability, the decision may well be different.  However, in this case a high level of engagement with the employee through dialogue, return to work interviews and further discussions with the G.P. are all steps which are likely to satisfy a Tribunal that a business has acted reasonably in investigating the extent of any illness.  This should, in turn, avoid a finding that an employer should have known about a condition which amounts to a disability and thus triggers the duty to make reasonable adjustments.