One of the unique aspects of disability, compared to the other characteristics protected by the Equality Act 2010, is that there is often disagreement between the employer and employee about whether the employee is in fact disabled and whether the employer was aware, or should have been aware, that the employee was disabled. This is because, for an employer to be answerable for alleged disability discrimination, they must have known, or be in a position where they should have known, that the employee is disabled. This article will consider three disability discrimination cases in 2013. All three have provided further clarity on these preliminary yet often critical points in disability discrimination claims.
Gallop v Newport City Council
In December last year the Court of Appeal overturned the earlier decisions of the employment and employment appeal tribunals, holding that an employer was not entitled to rely on the unreasoned opinion of an occupational health adviser to deny knowledge of an employee's disability. The case was decided under the Disability Discrimination Act 1995 (DDA), but acknowledges that the same principles apply under the Equality Act 2010 (EA 2010).
Mr Gallop was employed by Newport City Council and had been off work on three separate occasions for stress-related illness and depression. After several unsuccessful attempts to return to work permanently, the Council obtained the view of an occupational health advisor whose opinion was that Mr Gallop was likely to remain unfit for the foreseeable future, he was not a candidate for ill-health retirement and that he was not disabled for the purposes of the DDA. On his return to work after the final period of sickness absence, Mr Gallop was suspended following allegations of bullying and was dismissed several months later.
Mr Gallop claimed that he was a disabled person for the purposes of the DDA. He claimed direct discrimination and a failure to make reasonable adjustments. The Council disagreed that Mr Gallop was disabled and argued that if he was, they did not have the requisite knowledge that he was disabled, relying on the occupational health advice they had received.
The question before the Court of Appeal was whether the tribunal had misdirected itself in reaching the conclusion that the Council had at no time any knowledge, either actual or constructive, of Mr Gallop’s disability and the EAT had erred in upholding the tribunal’s approach. The Court found that the tribunal did not perform the task of identifying whether the Council had actual or constructive knowledge of the facts constituting the employee’s disability.
In its judgment, the court explained the correct approach that a tribunal should take in deciding whether an employer knew or ought to have known about an employee's disability:
1. The employer must have actual or constructive knowledge that the employee was disabled and,
2. The relevant knowledge, whether actual or constructive, is knowledge of the facts that will establish whether an employee has a disability, as defined by section 1(1) of the DDA (now in s.6 (1) of the EA 2010) i.e. was there an impairment, was it substantial and long term and did it have an adverse effect on their ability to carry out normal day-to-day activities.
The Court of Appeal also clarified that provided the employer has actual or constructive knowledge of the facts constituting the employee’s disability, they do not need to know that, as a matter of law, the consequence of such facts is that the employee falls within the definition of a disabled person in the DDA / EA 2010.
In a useful observation the court reminded employers they "must not forget that it is still he, the employer, who has to make the factual judgment as to whether the employee is or is not disabled: he cannot simply rubber stamp the adviser’s opinion that he is not”.
McCubbin v Perth and Kinross Council
In McCubbin, the EAT in Scotland drilled down further into what is meant by actual or constructive knowledge of disability and emphasised that if the employer didn’t know the employee was disabled the tribunal must go on to consider whether they ought to have known.
Mr McCubbin worked for Perth and Kinross Council as a secondary school teacher and was also an active trade union member. Although Mr McCubbin had not taken long-term sick leave, he had had some time off and made the Council aware he was stressed and anxious. He had sought additional time to work on his trade union duties and advised them that he was attending counselling sessions and using herbal calming remedies.
Mr McCubbin claimed that he had been disabled since 2010 and that the Council had failed in its duty to make reasonable adjustments. The Council agreed the claimant was disabled from September 2012, but disagreed that he was disabled from as early as July 2010 and, if he was, then it could not be expected to know Mr McCubbin was disabled at that time.
At a prehearing review the tribunal decided the claimant was disabled from July 2010 but that the Council did not know and so did not have a duty to make reasonable adjustments. The question before the EAT was whether the tribunal had applied the correct test in relation to whether the Council was answerable for alleged disability discrimination because it ought to have known Mr McCubbin was disabled.
Lady Stacey found the tribunal had identified the correct test, which has two parts:
- Did the employer know the employee was disabled and that his disability was liable to affect him in the manner set out? If the answer is “no” then there is a second question which is,
- Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out?
However, the tribunal had failed to apply the second part of the test despite finding that the answer to the first part was “no”. In upholding the appeal, the EAT ordered that the question of what the Council “could reasonably be expected to know” should be held over to the full hearing.
What these cases mean
Both cases demonstrate that employers are required to be mindful of the possibility that an employee who is on sick leave or who is having difficulty participating at work may be disabled and therefore the duty not to discriminate and to make reasonable adjustments may apply. If challenged, employers will be required to show that they considered all the information before them and made reasonable enquiries about whether the employee was disabled. As the EHRC Code of Practice explains:
“The employer must do all they can reasonably be expected to do to find out whether this is the case [if an employee is disabled]. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially ”.
And, in considering whether an employee is disabled, employers must also be mindful of what constitutes disability for the purposes of our domestic equality law. In this regard, the decision of the Court of the Justice of the European Union (CJEU) in Ring is of critical importance to our understanding of what impairments or conditions may fit within the definition of disability in the EA 2010.
The definition of disability - the case of Ring
The CJEU in Ring decided that the Equal Treatment in Employment Directive (Framework Directive 2000/78) must be interpreted consistently with the UN Convention on the Rights of Persons with Disability (the Disability Convention). The Disability Convention, which was ratified by the EU and the UK in 2009, sets out a definition of a disabled person as: “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others". In the UK this would be recognised as a social model of disability - where societal barriers rather than personal impairments cause disability - rather than a medical model.
The CJEU followed its earlier decision Sonia Chacón Navas v Eurest Colectividades SA and found that “the concept of disability must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers” and that it followed from the Disability Convention definition that the impairment must be long-term.
Therefore, as a result of the interpretative chain created by Ring the definition of disability in the EA 2010 must be interpreted, as far as possible, to be compatible with the Convention.
While some may view the recent case law as placing a greater burden on employers, an alternative view is that the courts have provided employers with an explanation of what the law requires them to do when an employee is showing signs that they are unable to participate fully and effectively at work. This is a prompt to start discussions with the employee, whether they are on sick leave or not, about any changes that could be made to working arrangements to achieve full and effective participation. As the Code or Practice says at paragraph 6.9 “... it would be sensible for employers not to attempt to make a fine judgement as to whether a particular individual falls within the statutory definition of disability, but to focus instead on meeting the needs of each worker and job applicant.”
Laura Hutchison, Senior Enforcement Officer, Equality and Human Rights Commission
Last updated: 07 Apr 2016