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What if the employer does not know about the disability?
[ch 6: pages 144-145]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 166 (Schedule 8:20 of the EA 10 — Work: reasonable adjustments).
However, an employer faced with behaviour that is out of character cannot simply ignore the obvious, as this example from the EHRC Code of Practice illustrates:
A disabled man who has depression has been at a particular workplace for two years. He has a good attendance and performance record. In recent weeks, however, he has become emotional and upset at work for no apparent reason. He has also been repeatedly late for work and has made some mistakes in his work. The worker is disciplined without being given any opportunity to explain that his difficulties at work arise from a disability and that recently the effects of his depression have worsened.
The sudden deterioration in the worker’s time-keeping and performance and the change in his behaviour at work should have alerted the employer to the possibility that these were connected to a disability. It is likely to be reasonable to expect the employer to explore with the worker the reason for these changes and whether the difficulties are because of something arising in consequence of a disability.
EHRC Code of Practice
www.equalityhumanrights.com/sites/default/files/documents/EqualityAct/employercode.pdf
It is always the employer’s responsibility to assess whether a worker or job applicant could be disabled so that reasonable adjustments must be made (see page 166). They are not allowed to delegate that responsibility to the judgment of an outside party such as an external occupational health provider or a GP:
A local authority tried to escape liability for Mr Gallop’s mental health condition (work-related stress and anxiety) by denying knowledge of his disability. This was because an external occupational health adviser had told them several times — but without offering any explanation — that Gallop was not disabled for the purposes of equality legislation. The Court of Appeal said that this was no defence because the judgment whether someone is disabled is one that only the employer can make. An employer can, and should, look for guidance from experts, but it cannot delegate the decision to outside advisers, or rubber-stamp their opinion.
Gallop v Newport City Council [2013] EWCA 1583
To trigger responsibility, all the employer must know (or ought to know) is the fact of the employee’s condition and how it affects them. Employers do not need to know that a worker’s condition has a particular diagnosis (Jennings v Barts and the London NHS Trust UKEAT/0056/12/DM). Indeed as already explained above, someone can still be disabled even if there is no medical diagnosis for their condition.
The EHRC Code says that if an employer’s internal occupational health adviser or an HR officer knows about a person’s disability, the employer cannot normally claim not to know (paragraph 5.17, EHRC Code). The Code goes on to say:
“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”.
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. In other words, the employer owes a positive duty to take reasonable steps, acting sensitively, to find out the position, always remembering a worker’s right to confidentiality.