"Absolutely spot on"
Cox v Essex County Fire and Rescue Service [UKEAT/0162/13]
Under the Disability Discrimination Act 1995 and now the Equality Act 2010 an employer is under a duty to make reasonable adjustments if an employee is at a substantial disadvantage compared to non-disabled employees. However, an employer does not need to make reasonable adjustments if it did not and could not have been expected to know that the person had a disability and they were likely to be at a substantial disadvantage compared to non-disabled employees.
In this case the Employment Appeal Tribunal (‘EAT’) had to decide whether an employer had knowledge of an employee’s disability.
Mr Cox was employed by Essex County Fire and Rescue Service (‘Essex Fire Service’) as Deputy Finance Director.
Mr Cox completed a medical questionnaire before starting his employment with Essex Fire Service. He indicated in the questionnaire that he suffered from mild depression for which he was taking anti-depressants. He also made it clear that he did not believe his condition would affect his ability to carry out normal day-to-day activities.
In August 2009 there was a site reorganisation. Essex Fire Service held a number of meetings as part of the reorganisation. During the meetings it was alleged Mr Cox behaved in an inappropriate way towards colleagues including becoming increasingly aggressive.
Essex Fire Service referred Mr Cox to occupational health. Dr Murphy saw Mr Cox and produced a report. He did not consider Mr Cox had a disability and concluded that he was fit to work. As well as producing the report Dr Murphy wrote to Mr Cox’s GP requesting an extract from Mr Cox’s medical records. Mr Cox refused to consent to his GP releasing anything to occupational health.
On 8 September 2009 Essex Fire Service suspended Mr Cox. In the letter of suspension it stated Mr Cox had exhibited aggressive, threatening and intimidating behaviour towards other employees which was tantamount to bullying and may constitute gross misconduct.
Also on 8 September 2009 Mr Cox raised two grievances. Later in September Mr Cox raised a third grievance in which he said he had been suffering from bi-polar disorder since early July 2009. As a result of Mr Cox’s comment about his health Essex Fire Service referred him to occupational health.
In October 2009 Dr Murphy got Mr Cox’s consent to approach his GP and specialist for a report on his condition. Dr Murphy received a report from Dr Vinnakota who worked with Mr Cox’s consultant. The report said that Mr Cox had “been trying to make an effort to monitor his behaviour and keep his aggression in check and denied any impulsive behaviour.” A further report from Dr Vinnakota stated “?Bipolar Affective Disorder Type 3” but there was still no definitive diagnosis. On the advice of his personal injury lawyer Mr Cox withdrew his consent for his GP and specialist to provide a report to Dr Murphy. Therefore, despite asking the right questions, Essex Fire Service was not able to obtain a definitive diagnosis.
In time Essex Fire Service dismissed Mr Cox’s grievances and then, in February 2010, it dismissed him for gross misconduct as a result of his aggressive, threatening and intimidating behaviour towards other employees.
Mr Cox brought a claim of disability discrimination in the employment tribunal. The employment tribunal concluded that Essex Fire Service could not reasonably have known that Mr Cox was disabled and it was not under a duty to make reasonable adjustments. Mr Cox appealed to the EAT.
The EAT agreed that Essex Fire Service did not and could not have known that Mr Cox had a disability. All Essex Fire Service had was Mr Cox’s own assertion in his third grievance that he had bipolar disorder. The only medical evidence was the two reports from Dr Vinnakota. In one of these he stated “Diagnosis: ?Bipolar Affective Disorder Type 3”, but there was no definitive diagnosis. As Essex Fire Service did not and could not reasonably know Mr Cox was disabled it did not have any duty to make reasonable adjustments.
This case highlights the importance of an employer obtaining medical evidence about an employee’s alleged disability and the importance of an employee providing that evidence. The employee was clearly displaying symptoms that may have suggested he was bipolar and by the date of the hearing Essex Fire Service had accepted that Mr Cox suffered from bipolar. However, because it did not have a definitive diagnosis it was not under a duty to make reasonable adjustments.
That said, employers should be wary; this case related to a mental health condition and the outcome is unlikely to have been the same if the condition had been physical. Essex Fire Service had also ‘asked all the right questions’. Anything short of this may not be enough.
If you are unsure if an employee is disabled or if you need to make or think about reasonable adjustments our specialist solicitors can help.
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