What if the employer does not know about the disability?

If an employer does not know, and cannot reasonably be expected to know, about a disability, they will not be liable for disability discrimination. The same applies to the duty to make reasonable adjustments discussed on page 172 (Schedule 8:20 of the EA 10 — Work: reasonable adjustments).

However, an employer faced with behaviour that is out of character cannot simply close its eyes to the obvious, as this example from the EHRC Code of Practice illustrates:

It is the job of the employer to make a judgment as to whether an individual is disabled. That judgment cannot be delegated to an outside third party, such as an external occupational health provider or a GP. In Gallop v Newport City Council [2013] EWCA 1583, an employer tried to escape liability for their employee’s condition (work-related stress and anxiety) by claiming they had no knowledge of the existence of his disability because an external occupational health adviser had reported to them several times, unambiguously but without any explanation, that Mr Gallop was not disabled for the purposes of the EA 10. The Court of Appeal said that this did not give them a defence because the judgment whether someone is disabled in one that only the employer can make. An employer will rightly look for guidance from experts, but it cannot delegate the decision to outside advisers, or rubber-stamp their opinion.

The knowledge the employer needs to trigger their potential liability is actual or constructive knowledge of the facts that make up the employee’s condition and its effect on him or her. They do not need to know that the condition “qualifies” as a disability for the purposes of the EA 10.

Where an employer’s internal occupational health adviser, or a HR officer, knows about a person’s disability, the employer cannot normally claim lack of knowledge (paragraph 5.17, EHRC Code). The Code recommends to employers that: “Where information about disabled people may come through different channels, employers need to ensure that there is a means — suitably confidential and subject to the disabled person’s consent — for bringing that information together to make it easier for the employer to fulfil their duties under the Act”. Reps can play an important role here.

However, despite this guidance from the Code, lack of knowledge can sometimes provide a defence to an employer even if some managers within the organisation know of the disability, where the information is not known to (and so cannot influence) the decision maker. For example, in IPC Media Limited v Millar [2013] UKEAT/0395/12/SM, a claimant argued that her employer withheld an offer of alternative employment during a redundancy exercise because of her past sickness record and concerns about future absences due to a planned knee operation. She lost her claim because although some managers knew about her disability and sickness record, the manager who decided not to offer her the roles did not.

Paragraph 5.15 of the EHRC Code says that an employer must “do all they can reasonably be expected to do” to discover whether someone is disabled. This places a positive duty on the employer to take steps to find out the position. What is reasonable depends on the surrounding circumstances (see, for example, McCubbin v Perth & Kinross Council UKEATS/0025/13/BI).