Imagine you are an employer accused of disability discrimination. You will soon become aware that “disability” is defined under the Equality Act as (a) a physical or mental impairment that has (b) a substantial and long term adverse effect on (c) the employee’s ability to carry out normal day to day activities. 
In many cases, the disability will have been obvious. But what if it was mental rather than physical, and therefore invisible? What if someone who you never suspected to be a disabled person alleges that you have failed to make reasonable adjustments? Are you vulnerable to a claim regardless of your professed lack of knowledge? 
The quick answer, under s.15(2) Equality Act, is that if you did not know and could not reasonably be expected to know that your employee had a disability, this is a defence. 
As ever, the devil is in the detail. There may be no statutory duty to enquire about possible or suspected disability, but the Equality & Human Rights Commission’s Employment Code suggests you should do all you reasonably can to find out. Tricky, isn’t it? What should you do about a poor performer who everyone in the office thinks of as unusually eccentric? Should you stay focused on performance issues alone, or ask a few leading questions about disability? What would trigger any legal duty to ask? What about the risk of offending a very private person who had decided to rely on coping strategies? Let’s look at some cases. 
Starting with Cox v Essex County Fire & Rescue Service in the Employment Appeal Tribunal, C reacted to his gross misconduct dismissal by claiming disability discrimination and citing bipolar disorder. However, C withdrew consent for his employer to gain access to his medical evidence, at a time when a consultant psychiatrist had chosen to query the possible diagnosis rather than confirm it. The EAT decided it was right to dismiss the claim. In the absence of a definitive diagnosis of bipolar disorder, rather than merely C’s word for it, the employer could not have had actual or constructive knowledge at the relevant time that C was a disabled person. Of course, a fuller investigation might have shown he was, so clearly C was the author of his own misfortune for not co-operating. 
As to Gallop v Newport Council, G’s employer had been repeatedly told over a 2 year period by Occupational Health that G’s stress related illness did not comprise depression and was not a disability under the Act. G lost in the tribunal and the EAT, as it was felt that the employer was entitled to rely on its OH advice. However, the Court of Appeal switched the focus from the legal definition to the facts. If an employer had actual or constructive knowledge of the three factual elements from the definition set out above – impairment, effect, ability – its knowledge (or otherwise) of what the law made of this would be irrelevant. So it was not enough to rely on an outside opinion from OH. The employer had to make a factual judgment, and ask specific practical questions in order to do so. 
This brings us to Donelien v Liberata in the EAT. In contrast with the previous case, the employer had evidently done all it could in making reasonable enquiries about D’s condition, from which it concluded that there was no disability. It could not be expected to have done more. There was no need to have taken every conceivable step – the test was reasonableness, not a counsel of perfection. It was no doubt also relevant to have noted an element of non-cooperation on D’s part in assisting her employer’s enquiries. 
Is there any overall conclusion to draw? It ought to be a matter of common sense, but rarely is in practice. As ever, a medical diagnosis (however tentative) and a frank and co-operative employee will be likely to put an employer on alert much more than a medical vacuum and an uncommunicative and unhelpful employee. 
Tagged as: Solicitor
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