(but if you don’t know and you should, you also know)
Partner & Head of Employment, Kevin McKenna, discusses the legal issues around disability in the workplace.
Do you know who in your workforce is disabled? Latest estimates from the DWP indicate that 16 million people in the UK had a disability in the 2021/22 financial year. 23% of working adults are disabled and that figure has been on the rise.
Under the Equality Act 2010 discrimination arising from disability occurs where:
- A person (A) treats a disabled person (B) unfavourably because of something arising in consequence of B’s disability; and
- (A) cannot show that the treatment is a proportionate means of achieving a legitimate aim.
However, this type of claim can be defended if A (usually the employer) can show that it did not know, and could not reasonably have been expected to know, that B (usually the employee, sometimes the job applicant) had the disability.
The EHRC Employment Statutory Code of Practice (the Code) states that, “It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it.”
Whether an employer could reasonably have been expected to know about a disability is often referred to as “constructive knowledge”. Employers must do all they can reasonably be expected to do to find out if the individual has a disability. Employers who turn a blind eye to indicators of a disability or who rely on the fact that the employee has never disclosed a disability previously take a potentially high risk. It is not uncommon for employees to tick the box that says they don’t have a disability when completing employer records but that is not the end of the story. The Code also states, “Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a disabled person.”
The degree of impairment required to be treated as disabled under the Equality Act is almost certainly lower than that required in other aspects of life (such as for state benefits or insurance claims), and so employers should act with caution if an individual discloses the possibility of a physical or mental impairment as an explanation for performance shortcomings or certain conduct. Employers should resist the temptation to rely on their own lay knowledge of the cause or effect of medical conditions. It is also dangerous for employers to reach uninformed conclusions about whether any reasonable adjustments could feasibly be made for a worker. Equally, proactive employers who do obtain a clinical opinion cannot rest there. The Court of Appeal has also given guidance that it is not enough for an employer to “rubber stamp” a medical expert’s advice that an employee is not disabled, the employer must form its own view.
The key takeaway is don’t ignore the possibility of a disability being a factor in a workplace dispute. Ask more questions (but consider issues of dignity and privacy), get expert medical advice and consider carefully whether its conclusions are reasonable – and talk it all through with the individual concerned before you act. Adopt the usual mantra of the employment lawyer and act reasonably. Ask the Employment Appeal Tribunal what that means and they will say that reasonableness, “must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee as recognised by the Code”.
