Blog: Disability – back to basics (Part 2)

Following on from my recent blog, I thought I would look at another aspect of disability discrimination law that makes it unique within the word of discrimination/equality law: the issue of whether the employer (or potential employer in a recruitment scenario) had knowledge of the person’s disability.

It’s what you know

Disability discrimination differs from all the other types of protected characteristics under the Equality Act in a number of ways, including the fact that there are two extra kinds of claim that can be made where the protected characteristic is a disability – namely a claim for discrimination ‘arising from disability’ and for a ‘failure to make reasonable adjustments’. These two special types of claim can only succeed if the claimant can prove that the employer knew, or could reasonably be expected to know, that they were a disabled person under the Equality Act 2010. If the employer had no knowledge of the disability, then both these types of claims will fail.

In the real-life example I gave in my previous blog, not only did my employer client challenge whether its former employee was disabled; they also argued that they did not know, nor could they reasonably be expected to know, that she was disabled. This was because the first time they knew of any disability issue was when her ET1 claim form hit my client’s desk.

Keeping it private

This, I know, happens a lot, and many times is for very good reason. An employee (or candidate) might chose not to disclose any disability on an application form for fear of being discriminated against or because of experiences of previous discrimination. Or, even when employed, someone can rightly take the view that any issues with their health are their concern and can be kept private. The difficulty here is that if an employee needs reasonable adjustments in the workplace, the employer will need to have some knowledge of the impairment in order to consider what adjustments can be made.

Recent case

In the case I referred to in my last blog, Mutombo-Mpania v Angard Staffing Solutions Ltd, the question of whether the employer knew of Mr Mutomba-Mpania’s alleged disability – and therefore whether they ought to have made the reasonable adjustment of not scheduling him to work on a night shift – was considered by the Tribunal. The starting point for the Tribunal’s decision was Mr Mutomba-Mpania’s job application and health declaration forms: he made no declaration of any disability on either. He gave evidence to the Tribunal that he eventually advised his employer of ‘health issues’ that prevented him working a nightshift. Was this enough to put the employer ‘on notice’ of his disability and for them therefore to be obliged make more enquiries? The Employment Appeal Tribunal ruled it was not: knowledge of ‘health issues’ did not equate to knowledge of a disability; and that, coupled with Mr Mutomba-Mpania’s original application and the fact that he had completed night shifts previously, made it reasonable for the employer to not dig any further in this case.

Did you know or didn’t you?

Now, I am not recommending that employers ignore potential disabilities in the workplace, in the hope that they can argue at some later date they had no knowledge of them. However, there will genuinely be those cases where an employer does not have knowledge even if the employee/candidate does have some health issues. In these types of cases, my recommendation is that an employer responding to a disability discrimination claim should consider using their genuine lack of knowledge as a defence.

Keep alert

The lesson from considering all this, of course, is the need for you and your management colleagues to keep alert to any information coming your way – formally or completely informally – about any member of staff’s health conditions. You’re not expected to pry into employee’s personal lives, but at the same time if facts are shouting “this may be a disability” at you then it’s wise to politely ask some questions.

It’s a tricky area and in this blog I have only just scratched the surface of the law around the issue of whether an employer will be deemed to know that an employee has a disability, so if you have any discrimination issues you’d like to discuss, do please get in touch with me.

Anne-Marie Boyle
Partner

or call 0117 325 0924