Employment Alert No. 110: Employers Fixed With Constructive Knowledge of Disability
October 5, 2005
| What is the Issue? |
The statutory dispute resolution rules came into effect on 1 October 2004. They provide that if an employee wishes make complaint Employment Tribunal, usually he will need to raise written grievance with his employer relevant issue and wait 28 days before filing the claim form.
Under the Disability Discrimination Act 1995 (the “DDA”), employers are required to make reasonable adjustments to their premises or practices to ensure that employees with disabilities are not placed at a “substantial disadvantage” in comparison with those who are not disabled.
The DDA does not, however, require employers to make reasonable adjustments if the employer does not know (and could not reasonably be expected to know): (a) about the employee’s disability; and (b) that the employee is likely to be placed at a “substantial disadvantage”.
The DDA also prohibits less favourable treatment of employees on grounds of disability unless such treatment can be justified.
In the recent case of Department of Work and Pensions v Hall, the EAT considered whether an employer could be deemed to know about an employee’s disability, despite the fact that the employee had never expressly told her employer about it.
| What has the EAT decided? |
The statutory dispute resolution rules came into effect on 1 October 2004. They provide that if an employee wishes make complaint Employment Tribunal, usually he will need to raise written grievance with his employer relevant issue and wait 28 days before filing the claim form.
The EAT decided that employers can be fixed with knowledge of an employee’s disability in these circumstances.
In this case, Ms. Hall was disciplined by her employer, the DWP, following a number of altercations (both verbal and physical) with other members of staff. She was dismissed following a disciplinary hearing and her subsequent appeal was also dismissed.
H brought a claim for disability discrimination alleging that: (a) she had suffered less favourable treatment; and (b) the DWP had failed to make reasonable adjustments to accommodate her disability. The Tribunal found that H was, indeed, disabled. The question was – could the DWP be said to have known?
In reaching its decision, the EAT took the following factors into consideration:
- H had refused to allow the DWP access to her medical records. This, together with her volatile behaviour should have “rung alarm bells” with the DWP;
- The DWP had seen H’s application for disability tax credit but had not pursued the matter further; and
- A member of the panel which had interviewed H for the job had known H and her husband for some time. This individual did not mention anything to the DWP about H’s disability.
Together, these issues were considered to be sufficient to fix the DWP with constructive knowledge of H’s disability.
The DWP had failed to make reasonable adjustments. They could not justify this failure as they had not even turned their minds to it.
| What does this mean for employers? |
The statutory dispute resolution rules came into effect on 1 October 2004. They provide that if an employee wishes make complaint Employment Tribunal, usually he will need to raise written grievance with his employer relevant issue and wait 28 days before filing the claim form.
This is a worrying decision for employers, particularly because (with the exception of H’s application for disability tax credit), the factors the EAT considered to be relevant to the state of the DWP’s knowledge might understandably appear to be innocuous to many employers.
For organisations which employ a large number of individuals, this decision emphasises the need to carefully co-ordinate and analyse health and behavioural information about employees. Factors such as those considered by the EAT might appear to be insignificant taken in isolation, but collectively they may paint a very different picture.
It is worth noting that this case was decided under the “old” DDA provisions (i.e. before the introduction of the Disability Discrimination Act 1995 (Amendment) Regulations 2003). Whilst the EAT in this case did not entertain the DWP’s arguments in relation to justification, employers are no longer able to justify any failure to make reasonable adjustments.
