Knowledge of disability


An employer can only be liable for disability discrimination if they knew or ought to have known about the disability. 


All the employer needs to know is that the individual has an impairment that has a substantial effect on their ability to carry out normal day-to-day activities or is likely to do so in the future. They do not need to know, for example, that the condition has a particular diagnosis (Jennings v Barts and the London NHS Trust UKEAT/0056/12/DM) or that it meets the statutory definition of disability. For example, in Nissa v Waverley Education Foundation Limited [2018] UKEAT/0135/18/DA, a claimant’s fibromyalgia was only formally diagnosed after her dismissal. This did not prevent her employer knowing of her disability (and engaging in disability discrimination) in the months leading up to her dismissal. 



While many disabilities are obvious, others are not. Sometimes, an employee’s unusual behaviour will give the employer constructive knowledge of a hidden disability. In other words, they become liable because they ought to have known about it. For example, in DWP v Hall [2005] UKEAT/0012/05, the EAT agreed with the tribunal that Ms Hall’s frequent verbal arguments with colleagues, combined with the fact that she had applied to HR for disability tax credits on a form signed by her own manager, should have alerted her employer to the presence of a psychiatric condition, even though Hall opted not reveal her disability or to allow access to her GP. 


As always, whether an employer is on notice of a disability depends on all the facts. Simply referring to a “health condition” in an email to the employer, combined with taking four days of uncertificated absence, was not enough to put the employer on notice of a disability (essential hypertension) in the case of Mutombo-Mpania v Angard Staffing Solutions Limited [2018] UKEATS/0002/18/JW. 


It is the employer’s responsibility to assess whether a worker or job applicant might be disabled and, if so, to make any reasonable adjustments. The employer can rely on guidance from experts such as a GP or other medical expert (Donelien v Liberata UK Limited [2018] IRLR 535). But the end decision is for the employer to make. They cannot escape liability by delegating the assessment to a medical expert, or uncritically “rubber-stamping” their opinion, especially where that opinion is not backed up by reasons (Gallop v Newport City Council [2013] EWCA 1583). A reasonable employer should ask the expert to clarify any uncertainty and not simply accept a blanket assertion that someone does — or does not — have a disability. 


It is important to cooperate with the employer's reasonable attempts to find out about a disability, or else you risk losing the protection of the EA 10 on the basis that the employer could not reasonably have known about the disability. (See, for example, the case of Donelien v Liberata UK Limited [2018] IRLR 535).