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Reasonable adjustments and employer's knowledge of disability

Posted on 26th July 2011
Case law

This article explains an EAT decision about when will an employer have knowledge of an employee's disability so that it must consider making reasonable adjustments.

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the employee's lack of cooperation ultimately led to her claim being lost

Wilcox v Birmingham CAB Services Ltd UKEAT

Background

Under the Disability Discrimination Act 1995 (now under paragraph 20 of Schedule 8 of the Equality Act 2010) an employer is not under a duty to make reasonable adjustments if it does not know, and could not reasonably have been expected to know, that the employee had a disability and was likely to be at a substantial disadvantage compared with persons who are not disabled.

There has been some confusion in case law. The case of Wilcox v Birmingham CAB Services Ltd UKEAT has clarified that an employer is under no duty to make adjustments unless it knows (actually or constructively) both:

(a) that the employee in question is disabled; and

(b) that the employee is likely to be placed at a substantial disadvantage because of that disability.

In the above case the Citizens Advice Bureau (CAB) reorganised its debt advice work. The employee, Miss W, was asked to work at different office locations in and around Birmingham. Miss W objected, complaining that she did not like travelling the longer distances to work and asked to work closer to her home. Miss W then went onto sick leave with work related stress. The CAB commenced its attendance management procedure and Miss W submitted a grievance. Miss W did not disclose to the CAB that she suffered from travel related anxiety and two medical reports obtained by the CAB did not highlight this problem. Attempts by the CAB to offer Miss W alternative employment at a fixed location were unacceptable to Miss W. Ultimately Miss W resigned and claimed disability discrimination and constructive unfair dismissal. As part of the employment tribunal proceedings the tribunal directed the parties to jointly commission a report from a consultant psychiatrist. This report confirmed that Miss W had suffered from agoraphobia since December 2005 and it had a serious impact on her ability to travel.

The decision

Miss W was unsuccessful with her claim for disability discrimination because the CAB did not have actual or constructive knowledge of Miss W's medical condition prior to her resignation and subsequent employment tribunal claim. Miss W had been reluctant to disclose that she suffered from a mental illness (agoraphobia) and she was very reluctant to cooperate with the provision of the medical reports. The CAB made decisions based on the information it had obtained from Miss W and she provided insufficient information to allow the CAB to understand that she was a "disabled person". Whilst it is not necessary for the employee to point to a specific diagnosis it is necessary for the employee to provide to the employer sufficient information, in a timely manner, to permit the employer to obtain the appropriate medical advice so that the right determinations can be made. This is an example of a case where the employee's lack of cooperation ultimately led to her claim being lost.

In practice

This is a case which should be welcomed by employers. It is another common sense decision from the EAT. Nevertheless, employers should remember that the converse is true; if your employee discloses relevant information to you about his or her medical condition you are expected to then obtain and take account of relevant medical advice. This is because once an employer has been given relevant information from the employee, in most cases the employment tribunal will then affix you with actual or constructive knowledge of the employee's medical status and your actions will be judged on this basis. This case is a good example of an employer doing what was right and demonstrating by its employment procedures that it asked the right questions and made the right attempts to obtain the relevant medical advice. If the employee had been more cooperative the outcome may have been different. In this case the employer may have recognised that the employee was suffering from agoraphobia and therefore the case would have moved on to looking at what, if any, reasonable adjustments should and could have been implemented to permit the employee to remain at work. As it was the employer was not required to consider this issue because it did not have actual or constructive knowledge of the employee's disability.

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