The Equality Act 2010 provides that an employer is not liable for disability discrimination if (1) it did not know or (2) could not reasonably have been expected to know about a person's disability. The latter defence only applies in claims where there is a duty to make reasonable adjustments or where the discrimination is "arising from" disability. It does not apply to claims of direct or indirect disability discrimination, harassment or victimisation. For example in Gallop v Newport CC the Employment Appeal Tribunal held that it was only the knowledge of the line manager who was solely responsible for taking the decision to dismiss which was relevant in a direct disability discrimination claim.
The employer's "constructive" or "imputed" knowledge is relevant where the disability has not been disclosed. An individual may not know they have any medical problem or they may not know that a condition which they do have amounts to a legal disability. In other cases they may deliberately conceal the issue because of the perceived stigma (for example relating to their mental health) or because it may impact them obtaining or retaining a job.
So what does an employer have to consider either in the recruitment process or when dealing with an existing employee with a potentially undisclosed disability? When can an employer be deemed to have constructive knowledge of a disability?
The starting point is always to carefully consider if there is evidence that the person may have a disability. Certain conditions are deemed disabilities such as cancer, HIV or MS. However the problematic cases tend to arise where an employer has information suggesting the individual "may" meet the statutory definition of "disability". The employer has to decide whether the person has a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out their day to day activities. "Long term" means more than one year or likely to be more than one year, or less if it is for the rest of a person's life.
A prospective employer is restricted in what it can ask during the recruitment process. It cannot explore if an individual has a disability subject to three exceptions. Firstly it can ask if the candidate has a condition that precludes their participation in an assessment process. Secondly it can explore if the candidate may need any reasonable adjustments to undertake the assessment. Thirdly if the job requires an individual to carry out a function which is "intrinsic" to performing the role then the prospective employer can raise this. However employers should be cautious in trying to rely on this third exception as there may only be a limited number of jobs where this exception applies. For example if the job is solely restricted to tele-sales then a candidate would clearly be at a disadvantage if they had a severe incurable stammer or speech impediment.
If an employer follows these rules and the information provided does not indicate that the individual "may" have a disability then this is likely to provide a good defence in the event of a subsequent challenge where the candidate is alleged to have been rejected on disability grounds.
However if there is information that may suggest that the individual does have a disability the employer can only lawfully explore this and use that information for one of the 3 legitimate reasons referred to above.
Employers should write to new employees to ask if any reasonable adjustments are required to enable them to perform their role. Employees are of course not obliged under the Equality Act to disclose any condition.
The employer does however have far greater scope to ask questions about any potential disability during employment.
Tell tale signs may appear during employment which may suggest that an employee's health is impacting their work. Each case is fact specific but this can include a dip in performance, allied to absences and concerns raised by fellow colleagues about an individual's behaviour. It is sensible as part of any investigation to ask questions to try and elicit if there is any underlying disability.
It is clearly important to obtain an Occupational Health (OH) Report. However the courts have stressed that it is for the employer to decide whether an employee has a disability, not OH. The employer should provide OH with a detailed letter of instruction with specific questions asking OH to address the terms of the statutory definition of disability. The employer should provide additional information to help the OH assessment such as the employee's job description and other information that the employer considers is relevant in the particular case.
Normally if OH suggest that the person has a condition that appears to be a disability then most employers will accept this. However I have seen employers successfully challenge OH's medical findings analysing disability. Such cases will be the exception rather than the rule and usually require the appointment of a Consultant to help challenge any such findings. These usually cover the opposite scenario where individuals are trying to positively argue they are disabled rather than not disclose one.
The major risk for employers is blindly accepting an OH report which suggests that an employee is not disabled and which contains little or no reasoning and/or does not address the definition of disability. An employer should go back and ask OH to clarify the report and also investigate any other related issues. It should pull together all relevant and disclosable information in considering this issue. If it does not do so then it leaves itself open to the allegation that it cannot rely on the statutory defence that it has not done all that it could reasonably be expected to do to determine if the individual does have a disability. That is the key test.
There is a helpful Code of Practice which runs to over 300 pages on the Equality Act and a supplement which is updated to take account of subsequent case law. This provides useful guidance. Whilst a Tribunal can take the Code's terms into account it is not authoritative as only an Employment Tribunal can decide the issue.
An employer has to act reasonably in deciding if someone might have a disability. It is not difficult or time consuming for an employer to ask OH if it has any information which the employee has agreed to disclose. If so it should be disclosed. If the employer does not ask that question and it transpires that the employee consented to the release of the information then the Employment Code of Practice indicates that the employer will have no defence and be deemed to know of the employee's disability if the medical information is important to determining the issue. This applies in reasonable adjustment and discrimination "arsing from" disability cases. However the position is different if employees refuse to provide their consent to the disclosure of information of which the employer is unaware. The employer should also ensure that it has asked employees to undergo all relevant medicals and to disclose all relevant information including asking if they have consented to OH passing on information as a double check.
In summary in claims for a failure to make reasonable adjustments or discrimination arising from disability the onus is on the employer is to take reasonable steps to try and ascertain if the individual has a disability where this is not clear. If it meets that test and could not reasonably be expected to know then that will normally provide a defence. As one leading case stated the test is one of reasonableness - not a counsel of perfection.