A duty to make reasonable adjustments in respect of a disabled employee will not arise if the employer does not know, and could not reasonably be expected to know:
- that the individual is disabled, or
- that he or she is likely to be placed at a substantial disadvantage because of that disability
(paragraph 20, schedule 8 of the Equality Act 2010).
The question which will often arise for employers, therefore, is how do you “know” whether an employee is disabled? Is the employee telling you he thinks he has a certain condition enough? Do you need a formal medical report or diagnosis? What questions do you need to ask?
We take a look at some of the case law surrounding this issue, including last week’s judgment of the EAT in Cox v Essex County Fire and Rescue Service, to give some practical guidance on what employers need to consider when assessing whether they need to carry out reasonable adjustments.
“Reasonably expected to know” about the disability
In many cases it will be obvious to the employer that the employee is disabled, and so there will be no dispute about whether they ‘knew’ of the disability.
In many cases, though (and especially in cases of mental illness), the situation is more subtle. Employers are not medical professionals – nor are they expected to be – and it will often not be clear that the employee is suffering from an underlying condition, or that that condition constitutes a disability for the purposes of the Equality Act 2010. However, if the employer could ‘reasonably be expected to know’ about the disability (and about the substantial disadvantage the employee is placed under), even if in practice they did not actually know, then the duty to make reasonable adjustments will still arise.
Employers need to be careful, therefore, to keep an open mind as to whether an individual is disabled, and make sure to make all reasonable enquiries.
Information from the employee
The fact that an employee has not told the employer about his condition does not automatically mean the employer could not reasonably have been expected to know he was disabled. In the case of Department of Work and Pensions v Hall, for example, there were sufficient facts to have put the employer on notice that the employee might have been disabled (knowledge about the employee’s application for disability tax credit, the fact that a member of the interview panel knew the employee previously, and the employee’s ‘volatile behaviour’, for example) even though she did not ever bring her condition to the employer’s intention. The EAT held that employer should have known about the disability.
On the other hand, it does not follow that an employer will be deemed to know about the disability just because the employee has said that he thinks he is suffering from a particular condition, or his doctor has diagnosed him as such, without providing any further medical evidence. In the latest judgment from the EAT on this issue, the case of Cox v Essex County Fire and Rescue Service, Mr Cox had informed his employer that he was suffering from bi-polar disorder, but this was never properly confirmed to the employer by medical evidence (not least because Mr Cox would not agree to the disclosure of his medical records). The Tribunal held, and the EAT agreed, that the employer did not have actual or constructive knowledge of the disability. This may seem surprising at first glance, given that Mr Cox had clearly set out in writing to his employer the dates, symptoms, likely trigger and detailed effects of the condition, but the Tribunal did not look at that fact in isolation. The employer, having been put on notice by the employee of a possible disability, asked “all the right questions” – it obtained occupational health reports, sought medical opinions on whether the employee was disabled, tried to get a report from the employee’s GP (which was refused by the employee), and sought a formal diagnosis of the condition. Despite all this, there was no indication, other than what the employee was telling them, that the employee was disabled.
The advice to employers therefore, if an employee is telling you that he thinks he is disabled, or if you have some suspicion that the employee might have a disability but the employee has not said anything, is to always ask further questions. Do not just rely on what the employee is (or is not) telling you.
A significant point to bear in mind in the case of Cox above was Mr Cox’s refusal to let his GP hand over medical notes to his employer. Such refusal will be relevant to whether an employer is deemed to have had knowledge of the disability, but employers who encounter such refusal should not simply stop making enquiries at this first hurdle. If the employee will not give consent to release medical notes, ask if there is any alternative – will the employee consent to seeing an occupational health provider (“OHP”), or to this OHP speaking directly to the GP, for example? Always remember that the employer must make reasonable enquiries into whether the employee is likely to be disabled – the standard of what is ‘reasonable’ may be lower when the employee is not cooperative, but this will not mean the employer can sit back and do nothing.
On the facts of Wilcox v Birmingham CAB Services Ltd, the EAT held that the employer could not reasonably have been expected to know that Ms Wilcox was disabled until it received a consultant’s report (which was something which had been jointly commissioned at the direction of the Employment Tribunal following a claim having been commenced). Again, though, this does not mean that an employer can rely on not having sought such a report in the first place – it will still be required to make reasonable enquiries which in most cases will include seeking an OHP report.
Even once a report has been obtained, whether a ‘label’ or a full medical diagnosis has been attached to the employee’s condition in that report is not necessarily relevant, as the Cox case showed. Again, the correct action for the employer is to look at the facts and the medical evidence in the round and consider whether there is anything in them which should lead them to make further reasonable enquiries. Employers should not become fixated on the fact that the OHP does not give a formal diagnosis – the employee might still be disabled.
What about an OHP’s report which specifically states that an employee is not disabled for the purposes of the Equality Act 2010? Can an employer rely on this to say that it did not know (and could not reasonably have been expected to know) about the employee’s disability?
In the case of Gallop v Newport County Council the employer successfully used this argument both at the Tribunal and the EAT. This is an unusual case, though, and one which a prudent employer might not rely on too heavily, at least for the time being. Although the question of whether an employee is disabled for the purposes of the Equality Act 2010 is one which is often asked by employers to OHPs, case law certainly indicates that the test is (or should be) a legal one not a medical one and the OHP’s analysis in this regard should therefore not be decisive. It seems strange therefore that, in light of the EAT’s decision in this case, an employer is essentially able to argue that they had no knowledge (and could not reasonably have had any knowledge) of an employee’s disability, simply “because the OHP report said so”. The case has been heard in the Court of Appeal recently and we expect a judgment at any time, but in the meantime employers should remain cautious about simply finding a ‘sympathetic’ OHP who will tell them what they want to hear (that the employee is not disabled), and relying on that to deny all knowledge of an employee’s disability.
“All the right questions”
It is clear therefore that employers should make reasonable enquiries and ask “all the right questions” to ascertain whether an employee is disabled – if they fail to do so then they are unlikely to be able to argue that they “could not reasonably have known” about a disability.
What “all the right questions” are will depend on the circumstances, but employers must be careful not to simply rely on what the employee or the OHP is (or is not) telling them before deciding they have no duty to make reasonably adjustments. Cases such as Cox, Gallop and Wilcox are helpful to employers who are faced with having to argue at Tribunal that they did not know (and could not reasonably have been expected to know) about a disability, but asking “all the right questions” in the first place will hopefully ensure an employer never has to rely on such arguments.