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Disability discrimination: when an employer may know more than it thinks
Adrian Fryer
A recent Employment Appeal Tribunal decision provides a useful reminder that employers cannot always rely on the absence of a formal occupational health opinion when assessing whether an employee is disabled under the Equality Act 2010.
In Cunningham v BBC, the employee had type 2 diabetes which caused significant fatigue. The BBC was aware of her condition and had adjusted her shift pattern, although it continued to require her to work a late shift despite occupational health advice raising concerns about this. Following a disciplinary process linked to an error made during one of those shifts, the employee brought disability discrimination claims.
The key issue was whether the BBC knew, or ought reasonably to have known, that she was disabled. The tribunal initially found that it did not. However, the EAT disagreed, holding that the BBC had constructive knowledge of the disability.
Under the Equality Act 2010, an employer’s obligations do not depend solely on a medical professional explicitly stating that an employee is disabled. The legal definition of disability is whether the employee has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Ultimately, this is a legal test rather than a medical one.
The concept of constructive knowledge is particularly important. An employer may be treated as knowing about a disability where it has enough information that should reasonably have prompted further enquiries. In Cunningham, the BBC knew about the employee’s diabetes, understood the fatigue it caused, and had received occupational health advice referring to reasonable adjustments. That was enough to put it on notice.
Where there is evidence that a health condition is having a significant and ongoing impact on an employee, employers should consider whether the Equality Act may be engaged, and whether further investigation or workplace adjustments are required.