Employer Disability Awareness: How much do you need to know?

Most employers are aware of the potential issues and pitfalls surrounding disability discrimination claims, but does an employer actually have to be told about a disability in order for them to be aware of it?

Find out what happened in this recent case

In the case of Preston v E.ON Energy Solutions Ltd, the issue as to whether the employer should have known about the employee’s disability arose.

Mr Preston suffered from a rare form of epilepsy, which was worsened by reading and deemed him disabled under the Equality Act 2010. He was contracted to work for his employer via an agency and made the agency aware of his diagnosis. However, this information was never given to the employer.

Mr Preston took a couple of periods of sickness related absences, although critically these were not identified as being related to his epilepsy. His employer tried to put in place a series of adjustments to facilitate his return to work, again without the knowledge that he would be classed as disabled, but he refused to co-operate.

After making multiple attempts to facilitate the return to work, the employer dismissed Mr Preston on the grounds of gross misconduct for his continued absence and failure to follow instructions. Mr Preston was clearly unhappy with this outcome and lodged a claim in the Employment Tribunal for disability discrimination and the failure to make reasonable adjustments, amongst other things.

The Tribunal held that the Respondent (employer) had not known, and could not reasonably have known, about the Claimant's (Mr Preston) disability and that it had dismissed him on the basis that he had refused to engage with the measures rather than due to any disability.

Aggrieved, the Claimant appealed the decision. However, it was dismissed on the basis that there was no prospect that the Respondent knew or could have known about the Claimant’s disability. Further, it held that Mr Preston's reason for his sickness, which was stress, was unrelated to his disability and therefore the employer's actions were legitimate.

What can employers learn from this?

Employers should still attempt to make reasonable adjustments where required and reasonable to do so, however can take some comfort in the fact there is a limit to the amount of knowledge you will be deemed to hold about an employee’s disability, if it has not been raised previously.

Whilst employers cannot be liable for direct disability discrimination unless they knew, or should have known, about a disability, they can be liable for indirect disability discrimination, even if they were unaware of the disability.

Employers should ensure that they follow their sickness absence and disciplinary policies to reduce the risk of a claim being issued and be mindful that a dismissal could constitute disability discrimination if not dealt with correctly.

If you would like any further advice on how to handle dismissals or employees on sickness absence, please do get in touch with a member of our Employment team on 01752 663295 or email info@wolferstans.com.