Tuesday, June 2, 2020

Disability discrimination at work: Is it still discrimination if you don’t know an employee is disabled?

By Ian Lewis, senior consultant in company commercial law and employment law at Bray & Bray.

The Court of Appeal has issued an important judgement based on the case of a Council employee, who has been absent from work due to a stress-related illness.

The employer (Newport City Council) had been advised by its occupational health advisers that the employee was not disabled because in their opinion he wasn’t suffering from a depressive illness. When the employee continued to be absent from work for long periods of time due to work related stress, the employer continued to check whether the employee should be classed as disabled in line with the Disability Discrimination Act (which has since been replaced with the Equality Act 2010), but its occupational health advisers always advised that the employee was still not disabled.

Disabled or not?

However, when the employee was later dismissed from his role due to allegations of workplace bullying, he brought a claim against his employer for unfair dismissal (which he won) and disability discrimination (which was thrown out). When the case for disability discrimination was taken to an Employment Tribunal, the Tribunal found that the employee should in fact have been classed as disabled for the purposes of the Disability Discrimination Act, but because the employer did not have knowledge of the employee being officially disabled, the Tribunal dismissed the employee’s claim.

A factual judgement

The Court of Appeal allowed the employee’s appeal and overturned the Tribunal’s decision, based on the fact that the employer should not have relied solely upon the opinion of its occupational health advisers, saying “…the guidance may be that the opinion of the adviser is that the employee is not a disabled person. In such cases, the employer must not forget that it is still he, the employer, who has to make the factual judgement as to whether the employee is or is not disabled; he cannot simply rubber stamp the adviser’s opinion that he is not.”

Advice for employers about disability discrimination

It is often best practice for employers to check with an employment law specialist when considering whether they should be making reasonable adjustments for employees that are experiencing work related problems or health issues, without simply relying on theirs or their adviser’s opinion about whether an employee meets the legal definition of disability or not. If you have any questions about disability discrimination in the workplace, you can email me at idlewis@braybray.co.uk

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