When does an employer know that a worker is disabled?

Donald Rumsfeld, former US Secretary of State for Defence, famously said that there are known known (things we know), known unknowns (things we know we don't know) and unknown unknowns (things we don't know that we don’t know). 

04 Mar 2019

Although day-to-day HR practice has mercifully few similarities with counter-terrorism, businesses dealing with long-term sickness absence might have some sympathy with Mr Rumsfeld. It's often difficult for an employer to judge whether a worker is disabled under the Equality Act 2010, particularly if medical evidence is inconclusive or symptoms fluctuate. Some of the legal protections for disabled workers (including the duty to make reasonable adjustments) are triggered once the employer knows or ought reasonably to know that the worker is disabled. Two recent cases illustrate how this can create problems for employers.

The first case

This case relates to a teacher who had raised a grievance (which was dismissed rather high-handedly by the chief executive of the school) and who had been off work for four months. She told the chief executive that she suffered from post-traumatic stress disorder. She described this as being the result of childhood experiences but explained that it was triggered by stressful situations. Although an Occupational Health report was not obtained until another four months later, the Employment Appeal Tribunal held that the school ought reasonably to have known that she was disabled once she had disclosed her PTSD, rather than when the report was obtained. The school had therefore breached its duty to make reasonable adjustments during the hiatus period and could not rely on its own delay in obtaining the OH report.

The second case

This involves a teacher who suffered from fibromyalgia. The key issue in the case was whether, at the time when the alleged discriminatory acts took place, she had been disabled. In particular, her employer argued that her condition did not have a long-term effect on her ability to carry out day-to-day activities, as the effects had in fact lasted less than 12 months at the point at which she resigned. The Employment Appeal Tribunal found in the claimant's favour and emphasised that the key issue was whether, when the alleged discriminatory acts took place, the effects of the fibromyalgia were likely to last more than 12 months. This question had to be considered on the basis of the information available at the time, not with hindsight, and 'likely' in this context does not mean 'more than a 50% chance'; the bar is lower than that.

Final thoughts

Both these cases illustrate how uncertainty about a worker's medical condition rarely works in the employer's favour. The most sensible approach is to take steps to obtain accurate medical information as soon as a significant medical condition is suspected and assume that the worker may be disabled and act accordingly.

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