Recent decisions by the EAT indicate that employers can no longer turn a blind eye to staff with disabilities
It is not always obvious that a person has a disability. If an employer dismisses an employee for not performing to the required standard, to what extent can he rely on ignorance of a disability within the meaning of the Disability Discrimination Act 1995 if it turns out that the performance failings were due to, for example, chronic fatigue syndrome?
Under the Act an employer discriminates against a disabled person if, for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply or if he fails to comply with a duty to make reasonable adjustments and, in either case, he cannot justify the less favourable treatment or failure to make adjustments, as the case may be.
Less favourable treatment
In HJ Heinz v Kenrick, 2000, ICR 491, the Employment Appeal Tribunal held that less favourable treatment can be established even though the employer had no knowledge that an employee has a disability.
The issue was examined again recently by the EAT in London Borough of Hammersmith & Fulham v Farnsworth, EAT 461/99. Here, the borough withdrew an offer of employment after receiving a medical report from its retained occupational health physician which referred to prior episodes of ill-health.
The employment tribunal found that the applicant was suffering from a disability. The EAT held that the OH physician’s knowledge of that disability could be attributed to the borough as she was in effect part of the “decision-making” team which decided not to employ the applicant. But the EAT added that less favourable treatment would still have been established even if the borough had not known of the disability.
Both Kenrick and Farnsworth conflict with the previous EAT decision in O’Neill v Symm, 1988, ICR 481, in which it was held that knowledge of the disability was necessary. The EAT in Farnsworth, however, has decided that O’Neill is no longer good law and that the issue of disability in the context of less favourable treatment should not be viewed solely through the employer’s eyes but requires an objective approach.
While the effects of these recent developments would seem to place the employer in a “no-win” situation, there may be some light at the end of the tunnel for employers when it comes to the question of justification.
Justification can only be established where the reason for the less favourable treatment or failure to make adjustments is both material to the circumstances of the particular case and substantial. In Farnsworth, the EAT held that actual or constructive knowledge was a necessary ingredient when deciding if an employer had justified a failure to make adjustments but that, while it may be relevant to the issue of justification of less favourable treatment, it was not a vital factor.
In the light of these recent decisions it would seem that employers can no longer turn a blind eye as to whether an employee may have a disability, particularly when considerations of redundancy or disciplinary action arise in connection with absence. It is important to note, however, that the Act does not impose a duty on employers to make adjustments to facilitate the employment of disabled persons.
By Linda Farrell, partner at Bristows