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Employer’s knowledge of disability
[ch 7: pages 220-222]An employer who does not know and cannot reasonably be expected to know about a disability will not be liable for disabilty discrimination. However, an employer who is 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
https://www.equalityhumanrights.com/sites/default/files/employercode.pdf
An employer cannot escape liability by refusing to ask relevant questions, for example, questions about sickness absence when taking up references (see Pnaiser v NHS England and Coventry CC [2015] UKEAT/0137/15/LA).
It is always the employer’s responsibility to assess whether a worker or job applicant could be disabled for the purpose of the duty to make reasonable adjustments. This responsibility cannot be delegated to 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 because an external occupational health adviser had reassured them several times, but without 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 as to whether an individual is disabled is one that only the employer can make. An employer can, and should, look for guidance from experts, but cannot delegate the decision to outside advisers, or rubber-stamp their opinion.
Gallop v Newport City Council [2013] EWCA 1583
The employer will be liable provided they knew (or should have known) of the impairment and the way it affects the disabled worker. The employer does not need not to know that the condition has a particular diagnosis (Jennings v Barts and the London NHS Trust UKEAT/0056/12/DM).
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).
However, a recent tribunal ruling has contradicted the Code. In Gallop v Newport City Council [2016] UKEAT/1008/15/DM, the EAT has ruled that a claim for disability discrimination can only succeed if the person making the decision knows of the disability and is motivated or influenced by it (whether consciously or sub-consciously). The knowledge of others within the organisation — for example, the occupational health department — as to a worker’s disability will not be imputed to the manager making the decision. This ruling conflicts directly with paragraph 5.17 of the EHRC Code of Practice, quoted above.
Hopefully, the case will be appealed to the Court of Appeal, so that the position can be clarified. In the meantime, the decision emphasizes the significance for members of ensuring (for example, in the context of discipline or dismissal), that decision-makers are aware of their disability. It is always up to the member to decide whether to tell the employer about their disability.
Can a prospective employer ask about disability in the job application process?
No, subject to very limited exceptions. This issue is covered by rules set out in section 60, EA 10. For information on this, see Chapter 3, page 70.
Is there an obligation to tell the employer about the disability?
No. It is up to a member to decide whether to tell their employer about their disability. However, they should understand that if they do not, they may lose protection under the EA 10, including the chance to ask for reasonable adjustments. Many specialist charities offer advice about the best way to manage disclosure of a medical condition, who best to disclose it to and on what basis. Workplace reps can also play an important role. A worker who has disclosed details of their condition should keep a careful record.