Recent decisions of the Employment Appeal Tribunal have highlighted a couple of key themes which employers would be well advised to consider when dealing with their disabled employees.
Knowledge of disability
Certain types of alleged discrimination cannot occur unless the employer knows (or should know) about the employee's disability. In particular, there will be no discrimination arising from disability or a failure to make reasonable adjustments if the employer can show that it did not know, and could not reasonably have been expected to know, that the employee was disabled within the meaning of the Equality Act 2010.
Nevertheless, it can be difficult for an employer to argue that they could not reasonably have expected to know about an employee's disability as recently highlighted in the case of McCubbin v Perth & Kinross Council.
In that case, the claimant was a teacher who from 2010 stated he was feeling stressed as a result of the workload and had visited his GP. He was prescribed medication and also sought herbal remedies. He had spoken to his employer, the Council, about his stress levels but at the time the Council did not regard him to be any more stressed than other teachers at the school and were not aware of his diagnosis of depression or that he was in receipt of medication for depression. The Employment Tribunal ("Tribunal") found that the Council knew by September 2012 that the claimant was disabled. However, they held that the Council did not know nor ought to have known that the claimant was disabled prior to this date and therefore did not discriminate against him.
On appeal, the Employment Appeal Tribunal decided that the Tribunal failed to properly consider the question of whether or not the Council "could reasonably be expected to know" that the claimant was disabled. Although the Tribunal found that the Council had not been expressly told that the claimant had depression, there was no consideration of what the Council could reasonably be expected to know from the other information members of staff were given concerning the claimant's state of health.
It is therefore important that employers consider whether an employee has a disability even where one has not been formally disclosed, particularly as not all employees who meet the definition of disability will think of themselves as a "disabled person". In addition, employers should consider all the evidence available to them, and ensure that where information about disabled employees comes through different channels, there is a confidential way to bring that information together, to enable them to properly assess the likelihood of the employee being disabled. A failure to do so may lead to an employer unwittingly discriminating against that employee.
There is a legal duty on employers to make reasonable adjustments to help disabled employees in certain circumstances. The duty can arise where a disabled person is placed at a substantial disadvantage by: (i) an employer's provision, criterion or practice (PCP); (ii) a physical feature of the employer's premises; (iii) an employer's failure to provide an auxiliary aid.
One reasonable adjustment which an employer should consider making is that of altering a disabled person's duties, perhaps by transferring some of those duties to another employee, or altering their working hours or place of work. This was considered in the case of Swissport Ltd v Taylor. The claimant was a flight dispatcher employed at Gatwick Airport who, after an accident at work, had a lengthy absence from work as a result of his injuries and complications before being dismissed. The Tribunal found that the employer had failed to make reasonable adjustments because they had not properly considered the possibility of the claimant working from home planning advance flight rosters.
On appeal, the Employment Appeal Tribunal upheld the claimant's claim that the employer had failed to comply with its duty to make reasonable adjustments. Although the employer stated there were IT security concerns with planning advanced flight rosters at home, there was in fact no evidence to support this and no requirement for such work to be done at the airport as evidenced by a later transfer of that role to an office in Birmingham.
It is therefore important that, when deciding whether an adjustment is "reasonable" in the circumstances, an employer properly considers whether the adjustment can work in practice and has legitimate reasons, backed up by medical and other evidence, to support any decision that it can not.