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When is an employer expected to be aware of an employee’s disability?

PS
BY Paman Singh
Employment Law & HR

When faced with employees with underlying health issues (especially mental health conditions) it is often difficult to discern whether this qualifies as a disability, and consequently whether there is an active obligation to make adjustments to the employee’s role. If an employee is disabled, then there is a legal requirement to consider making ‘reasonable adjustments’ to their role to allow them to continue to work in it.

Knowledge of a disability can be actual, or it can be constructive, meaning it can be implied from the circumstances. In order to have either actual or constructive knowledge, an employer must have knowledge of all three of the following matters:

  • The impairment (whether physical or mental);

  • That it is sufficiently long-standing or likely to last 12 months at least; and

  • It sufficiently interferes with the employee’s normal day to day activities.

As the case law has evolved, so has the obligation on employers. Employers are required to ‘do all they can reasonably be expected to do’ to find out whether an employee is disabled. As with most things in law, this is suitably vague. The question of how far is far enough when trying to find out about an employee’s disability is a difficult one, however, there is some useful guidance. 

The importance of medical evidence

In Lamb v The Garrad Academy the Employment Appeals Tribunal has reinforced the importance of getting medical evidence at an early stage to allow an employer to make informed decisions. In this case the EAT warned employers where there is a failure to refer an individual to occupational health (OH) in good time, the employer can't use their own delay to claim they didn't know about that individual's disability.

In practical terms organisations should consult with OH or other relevant professionals at an appropriate stage where they have an employee that has been signed off sick for a number of weeks particularly if they are considering taking any action against that employee.

Conditions that are excluded as disabilities. 

Often when considering disability discrimination there is a lot of focus on whether or not a specific condition falls within the scope of the protections contained within the Equality Act.  It should be remembered however, that there are also conditions that are explicitly exempt and are not considered to be disabilities.  The following conditions are not "impairments" for the purposes of the definition of a "disability" (and hence cannot amount to a disability):

  • Addiction to/dependency on alcohol, nicotine or any other substance (other than medically prescribed drugs or other medical treatment).
  • Tendency to set fires.
  • Tendency to steal.
  • Tendency to physically or sexually abuse other people.
  • Exhibitionism.
  • Voyeurism.
  • Tattoos and body piercings.
  • Seasonal allergic rhinitis (usually known as hay fever)—but hay fever can be taken into account where it aggravates the effect of any other condition.

There still can be difficulties though when these are linked to other issues. In the recent EAT case of Wood v Durham County Council, Mr Wood claimed unfair dismissal and disability discrimination on the grounds that his PTSD and associative amnesia had caused him to shoplift.  The Council accepted that Mr. Wood had PTSD capable of amounting to a disability. However, it argued that Mr. Wood could not bring a disability discrimination claim because he had been dismissed for a “tendency to steal”, one of the excluded conditions in the Regulations that could not amount to a disability. 

The Employment Tribunal and the EAT both found that the Council dismissed Mr. Wood because of the shoplifting incident and, therefore, a tendency to steal, not on account of any disability. Whether his tendency to steal was caused by his impairment of PTSD was irrelevant.

Conclusions

The recent case law has highlighted a few issues to remember when dealing with employees with long term health issues.  Firstly, medical evidence is key to fully appraise an employee’s condition and if an employer delays in getting this they cannot rely on the fact that they were not aware that the condition may amount to a disability. Secondly, it must be remembered that excluded conditions can make or break an employee’s discrimination claim, even where there is a link between the issues.  This can often be a tricky area to negotiate so if you would like to discuss this further, please contact your dedicated employment solicitor.

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