Employers are often aware that they must make reasonable adjustments for disabled employees and that disabled employees should not be treated unfavourably due to their disability or for reasons related to that disability. The more difficult question is when that duty arises if the employee has not expressly said, “I am disabled.” Under the Equality Act 2010, an employer may still be treated as having knowledge of a disability if it could reasonably have been expected to know about it.
The legal test: Disability
A person is treated as disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.
Knowledge
If knowledge of a disability is in dispute, the employer must show that it had no knowledge of the disability or that it should not reasonably have known of the employee’s disability. The burden is therefore on the employer to show the absence of knowledge (as opposed to the employee demonstrating that they did).
The focus is not on whether the employer knew the legal label of “disability”. Instead, the relevant question is whether it knew, or should reasonably have known, the facts making up the statutory definition (a physical or mental impairment, with a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities).
Reasonable enquiries
Where there are signs of a possible disability, employers will be expected to make sensible and proportionate enquiries. This may include speaking with the employee, obtaining medical evidence, asking occupational health for input, and considering the employee’s absence record, symptoms, behaviour and any work-related difficulties. It would be a risky and unwise approach for an employer to avoid relevant lines of enquiry to try to avoid obtaining further information which would confirm the threshold for the legal test. A Tribunal will consider not only consider what it would have been reasonable for an employer to do but also what knowledge it would have gained had it carried out further enquiries.
Employers should be cautious if a report states an unsubstantiated opinion that an employee is “not disabled”. The employer is responsible for making its own judgment, based on the evidence available. Occupational health referrals should therefore ask practical questions, such as what condition the employee has, how it affects them, how long the effects are likely to last, and what adjustments may assist.
If a report from occupational health does not give an opinion of disability status, but refers to ‘reasonable adjustments’, this could put the employer on notice to ask more questions to clarify disability status.
What the case law shows
Cases in this areas have made clear that employers must take an active, critical approach. In Gallop v Newport City Council, the employer was criticised for effectively “rubber stamping” medical advice rather than considering for itself whether the employee met the statutory test. By contrast, in Donelien v Liberata UK Ltd, the employer was found not to have constructive knowledge because it had taken reasonable steps, including occupational health input, return-to-work meetings and correspondence with the employee’s GP, in circumstances where the employee’s position was unclear.
The lesson is that perfection is not required, but reasonable diligence is. If reasonable enquiries would have revealed the disability, an employer may be treated as having known about it even if it did not have actual knowledge at the time.
Practical steps for employers
- Train managers to recognise warning signs, such as repeated absences, stress-related issues, changes in performance, or requests for support.
- Make timely and sensitive enquiries where health concerns may be affecting work.
- Ask occupational health specific questions linked to the statutory definition of disability, rather than requesting a yes/no answer.
- Keep clear records of the enquiries made, the evidence considered and the reasons for any decision.
- Consider possible adjustments at an early stage, even where the medical position is not yet fully clear.
- Avoid assuming that an employee’s failure to use the word “disability” means no duty can arise.
Constructive knowledge is about what the employer should reasonably have discovered. Employers who spot potential warning signs, ask the right questions and engage properly with medical evidence will be in a far stronger position. Those who ignore signs of ill health, fail to seek further information of rely on incomplete medical advice, risk being deemed to have knowledge of a disability.
Disability-related claims can be incredibly costly for employers if an employee is successful at tribunal. Not only do disability-related claims have no length of service requirement, but compensation flowing from a discriminatory act is also uncapped. These claims can also be time-consuming to defend, requiring management time, witness evidence, disclosure and potentially lengthy tribunal proceedings.
In addition, allegations of disability discrimination can carry significant reputational risk, both internally and externally, particularly where an employer is perceived to have ignored warning signs or failed to engage properly with an employee’s health concerns. Employers should seek legal advice early on to reduce legal, time and reputational risks. Please contact our Employment Team for further advice and support.
