Disabled or not disabled: that is not the only question?

What happens if an employer and an employee do not agree that the employee is a disabled person? What if an employee claims that they are a disabled person because they experience stress-related illness and depression, which involves considerable time off from work? Can an employer claim that they did not know an employee is a disabled person if the employee did not say? Would your managers know the answers to these questions? Three recent disability discrimination cases help bring clarity to these issues. 

One of the unique aspects of disability, compared to the other characteristics protected by equality law is that there is often disagreement between the employer and employee about whether the employee is a disabled person or not, and whether the employer was aware, or should have been aware, that the employee was disabled.

The Equality and Human Rights Commission considers three disability discrimination cases that help bring clarity on these critical points in disability discrimination claims.

Gallop v Newport City Council  

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
• not a candidate for ill-health retirement
• not disabled for the purposes of equality law.

The Court of Appeal overturned decisions by the employment tribunal and employment appeals tribunal, finding in favour of Mr Gallop.

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 if an employee falls within the definition of a disabled person, under equality law.

The Court of Appeal reminded employers they must not forget that it is still the employer who has to make the factual judgment as to whether the employee is or is not disabled: they cannot simply rubber stamp the adviser’s opinion that he is not.

McCubbin v Perth and Kinross Council  

In this case, the Employment Appeal Tribunal explored what is meant by actual or constructive knowledge of disability and emphasised that if the employer didn’t know that an employee was disabled, the tribunal must go on to consider whether they ought to have known.

Applying the correct test

1. 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, 
2. 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? 

The definition of disability - the case of Ring

This case was a useful reminder of the social model of disability, - where societal barriers rather than personal impairments cause disability - rather than a medical model. An underpinning principle of disability equality is the social model of disability.

What these cases mean

Employers must 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 a disabled person. 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 Ring case helps our understanding of what impairments or conditions may fit within the definition of a disabled person under the Equality Act 2010.

To read more about these cases click, here

A few years ago I co-authored guidance for colleges, universities and community learning providers on disability equality, on behalf of the Disability Rights Commission (DRC). Although the DRC is now part of the Equality and Human Rights Commission, and the Disability Discrimination Act has been incorporated within the Equality Act 2010, much of the advice is still applicable. You can find out more information about the social model of disability in this guide – check out page 14, for example

To read the guidance, click here

To find out information about my training events on these issues click here