Knowledge of disability in discrimination claims

The Employment Appeal Tribunal (EAT)  has adjudicated this month on a disability discrimination claim which homed in on the importance of the employer’s knowledge of disability in discrimination claims.

In Preston v E.on Energy Solutions the employee had primary reading epilepsy (PRE), a rare form of epilepsy that is triggered by reading. Some time after starting work, he told the employer he had a disability. He was sent a health questionnaire that he failed to complete and he worked for several years with no epilepsy-related problems. He had some sickness absence, including for stress, that was unrelated to his epilepsy. Risk assessments were completed and capability meetings took place where the employee did not raise his epilepsy as an issue.

The employee only raised the PRE as an issue after he had been off sick for some time and his capability was being formally managed. The facts showed that his PRE worsened with stress but was not the cause of it. A number of adjustments were agreed to aid his return to work, including a whole month where the only expectations were that he show up for work and reacclimatise himself with the environment. Occupational health confirmed he was fit to work. He refused to return and was dismissed for gross misconduct for refusing to return to work when he was fit to do so. He brought discrimination claims including one for a failure to make reasonable adjustments.

The employment tribunal said the employer had not discriminated against the employee.  The reason for dismissal was not his health but his conduct – his refusal to return to work despite being assessed by occupational health as fit to return.

The employee appealed. The EAT confirmed that the requisite knowledge of disability meant knowledge not only of the medical condition but also the substantial disadvantage experienced by the employee.

The employee’s evidence had originally indicated that there was no substantial disadvantage from his PRE. PRE was only raised as an issue after he went off sick with stress. That meant the duty to make reasonable adjustments did not arise until after that. From that point, the employer had put in place all reasonable adjustments to allow him to return to work, yet he chose not to.

The tribunal had concluded reasonably that the stress, not the PRE, had caused his absence. Therefore his absence was not ‘something’ arising from his disability for the purposes of a discrimination claim. His dismissal was a proportionate way of achieving the legitimate business aim of efficient absence management.

This case is a reminder that the duty to make reasonable adjustments crystallises when the employer has knowledge of both the disability and the substantial disadvantage experienced by the employee. It is important to ask the right questions when health issues are raised, and keep careful records, to ensure that adjustments are made at the right time but also to protect the employer from spurious claims if they arise.