A recent Employment Appeal Tribunal (EAT) case is a useful reminder that employers should not assume an employee is not disabled simply because occupational health has not said so in clear terms.
In Cunningham v BBC, the employee had type 2 diabetes, which caused significant tiredness. The BBC knew about her condition and had made some changes to her shifts. However, it continued to require her to work a late shift that finished at 12.30am.
After the employee made an error during one of these shifts, she was disciplined and brought disability discrimination claims. The BBC argued that it did not know she was disabled at the time.
The EAT disagreed.
Under the Equality Act 2010, a person is disabled if they have a physical or mental condition that has a substantial and long-term effect on their ability to carry out normal day-to-day activities. Whether someone meets this definition is a question of fact, however those often best placed to assess this are the employee’s GP or Occupational Health specialist
The EAT found that the BBC knew about the employee’s diabetes, understood that it was causing fatigue, and had received occupational health advice discussing reasonable adjustments. Taken together, this meant the BBC knew, or should have known, that the employee might be disabled.
This is known as constructive knowledge. In simple terms, it means an employer may be treated as knowing about a disability even if nobody has formally confirmed it. If there is enough information available to raise the possibility of a disability, employers are expected to make further enquiries rather than ignore the issue.
For employers, the lesson is clear. Don’t focus solely on whether an employee has been formally labelled as disabled. Instead, consider the impact their condition is having on their day-to-day activities and whether further investigation or workplace adjustments may be needed. Taking a proactive approach can help reduce the risk of disability discrimination claims.
Employer’s will rarely have a full picture of the ‘day to day’ effects a condition may have on an employee. Therefore, employers should exercise caution and not substitute facts with their own opinions on whether or not an employee is disabled. Further enquiries could be, with the employee’s consent, a referral to Occupational Health or a request for further information from their GP.
For further information, please contact Kerry Curd in the employment team on 01626 202406 or email KerryCurd@wbw.co.uk.
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This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
