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Disability Discrimination: Knowledge of Disability

Date: 28/11/2013

An employer is not under a duty to make reasonable adjustments for an employee on account of disability, if he does not know, and could not reasonably be expected to know, both that the employee is disabled and that they are likely to be at a substantial disadvantage compared with non-disabled employees. This poses the question: if an employee tells the employer they are disabled but thwarts the employer’s attempts to get a definitive diagnosis, does the employer have knowledge of disability so as to trigger the duty to make reasonable adjustments?

Here, C, who was employed by Essex County Fire and Rescue Service (ECFRS), had mentioned that he suffered from mild depression on his pre-employment medical questionnaire but, had answered “No” in reply to the question: “Do you have any health condition or disability which affects your ability to carry out normal day-to-day activities?” which was posed elsewhere on the questionnaire. After concerns were raised about his ability to do his job in June 2009, C told his manager that an earlier workplace accident had caused severe concussion and that he was seeing a cognitive behavioural therapy counsellor. C also advised W, the head of HR, that he had severe depression. As a result of these conversations ECFRS referred C to its occupational health department (OH) who, in August 2009, advised that C was unlikely to have a disability for the purposes of the disability discrimination provisions.

On 12 August 2009, C’s manager spoke to him about allegations which had been made against him regarding his behaviour and communications with colleagues; C did not cite the workplace accident as the cause of this behaviour and did not want assistance or guidance. On 8 September, C was suspended pending an investigation into alleged “aggressive, threatening and intimidatory attitudes and behaviours” towards colleagues which, if substantiated, would amount to gross misconduct. C thereafter raised three grievances.

On 18 September, C sent an email to his manager stating that he had been suffering from bipolar disorder since July 2009 and that he had recently seen a psychiatrist. C was referred back to OH, who, confirmed that they were seeking reports from C’s GP and specialist as it was not clear to them that bipolar disorder was “an active diagnosis”. However, the report from OH concluded that there was very little prospect of C ever returning to work. C subsequntly withdrew his consent for his GP and specialist to respond to the request for disclosure of his medical condition. C’s grievances were rejected and ultimately C was summarily dismissed with effect from 9 February 2010.

Upon hearing C’s claims for disability discrimination, unfair and wrongful dismissal, the Tribunal held that, at the relevant time, ECFRS did not know, and could not reasonably have been expected to know, that C was disabled. It considered that ECFRS had done all that could reasonably be expected of it to find out whether C had a disability; it had asked the right questions, but C had declined to release certain medical information and there had been “no definitive diagnosis of [C] being bipolar”. The Tribunal accordingly dismissed C’s disability discrimination claim.

On appeal, the EAT upheld the Tribunal’s decision and found that the Tribunal, as the arbiter of facts, had been entitled to find that the employer had asked the right questions and was justified in concluding that the employee was not disabled. The Tribunal took particular note of the fact that the employee had withdrawn consent for his GP and specialist to provide information to the employer’s occupational health service.

Cox v Essex County Fire and Rescue Service [2013] UKEAT/0162/13, 28 October 2013

For further Civil Legal expert Advice and Assistance contact Adrian Berkeley 0161-371 0011 adrian@claim.co.uk

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