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Case update (2): Disability discrimination – are you in the know?

disability discriminationSummary:  Where an employee has told the employer that they suffer from bipolar disorder, but there has not been a definitive diagnosis, does the employer know, or have reasonably been expected to know, that the employee was disabled?

No, says the EAT in Cox v Essex County Fire and Rescue Service available here.

Facts: Mr Cox was employed by Essex County Fire and Rescue Service (‘Essex Fire Service’) as Deputy Finance Director.

Mr Cox had completed a medical questionnaire before starting employment in which he indicated that he suffered from mild depression for which he was taking anti-depressants.  He also made it clear that he did not believe his condition would affect his ability to carry out normal day-to-day activities.

When there was later a reorganisation it was alleged Mr Cox behaved in an inappropriate way towards colleagues during meetings including becoming increasingly aggressive.  Essex Fire Service referred Mr Cox to occupational health which produced a report stating that it did not consider Mr Cox had a disability and concluded that he was fit to work. Occupational health also wrote to Mr Cox’s GP requesting an extract from Mr Cox’s medical records. Mr Cox refused to consent to his GP releasing anything to occupational health.

Essex Fire Service suspended Mr Cox. In the letter of suspension it stated Mr Cox had exhibited aggressive, threatening and intimidating behaviour towards other employees which was tantamount to bullying and may constitute gross misconduct.  Mr Cox raised a grievance in which he said he had been suffering from bi-polar disorder. As a result of this comment Essex Fire Service referred him again to occupational health.  This time occupational health got Mr Cox’s consent to approach his GP and specialist for a report on his condition.

The report said that Mr Cox had “been trying to make an effort to monitor his behaviour and keep his aggression in check and denied any impulsive behaviour.” A further report stated “?Bipolar Affective Disorder Type 3″ but there was still no definitive diagnosis. Mr Cox then withdrew his consent for any further report. Therefore, despite asking the right questions, Essex Fire Service was not able to obtain a definitive diagnosis.

Following dismissal of Mr Cox’s grievances, Essex Fire Service dismissed him for gross misconduct as a result of his aggressive, threatening and intimidating behaviour towards other employees.

Mr Cox brought a claim of disability discrimination in the Tribunal. The Tribunal concluded that Essex Fire Service could not reasonably have known that Mr Cox was disabled and it was not under a duty to make reasonable adjustments. Mr Cox appealed to the EAT.

The EAT agreed that Essex Fire Service did not and could not have known that Mr Cox had a disability. All Essex Fire Service had was Mr Cox’s own assertion in his grievance that he had bipolar disorder. The only medical evidence was the two reports which queried bipolar but gave no definitive diagnosis. As Essex Fire Service did not, and could not reasonably know, Mr Cox was disabled it did not have any duty to make reasonable adjustments.

Implications: The main point to note here is that if an employer, having been put on notice by the employee of a possible disability, asks “all the right questions” to try to establish a definitive diagnosis they will be much better protected against any potential disability discrimination claims.

In this case the employer obtained occupational health reports, sought medical opinions on whether the employee was disabled, tried to get a report from the employee’s GP (which was refused by the employee), and sought a formal diagnosis of the condition. Despite all this, there was no indication, other than what the employee was telling them, that the employee was disabled.

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