What is ‘knowledge of disability’ in tribunal claims?

Liz Aylott and Mohamed Bangura summarise the importance of knowledge of disability in discrimination claims and offer advice to employers

The Equality Act 2010 defines disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”. An employer must know about an employee’s disability to evaluate whether a provision, criterion or practice puts the employee at a substantial disadvantage, and to make reasonable adjustments. 

Where the employee claims failure to make reasonable adjustments or discrimination arising from the disability (treating someone less favourably because of something arising as a consequence of their disability) it is important they can show that the employer knew, or would have reasonably been expected to know (constructive knowledge) of the disability. 

Employers must make all reasonable steps to determine whether an employee has a disability and may be put at a substantial disadvantage. Delaying an occupational health referral does not remove the employer’s obligations to make reasonable adjustments if they have constructive knowledge. 

The prevalence of mental health conditions creates a number of challenges and there may be difficulty in knowing that the employee is disabled if the disability is not immediately apparent. If there is disclosure to a company employee – such as an HR or occupational health professional – it would be difficult for the employer to claim lack of knowledge.

Examples in case law

In Lamb v The Garrard Academy (2018), the claimant convinced the Employment Appeal Tribunal (EAT) of the employer’s knowledge of post-traumatic stress disorder (PTSD) and lack of reasonable adjustments. 

In this case, Lamb, a teacher, was on sick leave. She disclosed PTSD in July 2012 and this was followed up in November 2012 by a referral to an occupational health practitioner. The EAT reflected that the date of disclosure was July not November 2012. The report in November 2012 did not refer to PTSD, only reactive depression due to her aunt’s death. However, the EAT determined that knowledge of disability was at July 2012, and review of the grievance letter would have supported the employer in their assessment of disability. 

In A Ltd v Z (2019), the EAT overturned the tribunal’s findings that the employer had constructive knowledge of the employee’s disability. The tribunal failed to ask itself whether the respondent could reasonably have been expected to know about the disability. Had the employer made further enquiries, the employee would have continued to hide the true facts of her mental health condition. The employer did not have constructive knowledge of the disability. The judgment is sensible, as it draws a fair balance between employee rights and employer obligations.

Advice for employers

Employers must take reasonable steps to ascertain disability, including:

  • ensure discussion with employees who disclose;
  • recognise that employees may downplay issues;
  • undertake an occupational health referral when employees disclose;
  • accept occupational health advice only with critical review.

Employers must take a wider view of their obligation:

  • build an inclusive environment; 
  • offer peer support;
  • provide disability equality training for all employees.

Advice for employees with disabilities

  • employees subject to disciplinary proceedings in which they feel an undisclosed disability may be relevant should disclose this quickly;
  • they should also provide medical record access to enable their employer to make reasonable adjustments.

Mohamed Bangura is an employment law specialist at Neale Turk Rochfort Solicitors and Liz Aylott is a curriculum specialist at a training provider