What is legal “knowledge” in so far as the Equality Act 2010 and disability are concerned

Do you know about your employee's disability? If you don't, how do you prove this at Tribunal? Emma Grace, Senior Employment Law Solicitor, shares her recommendations for avoiding potential claims.

Did the employer ‘know’ about the disability?

For most, if not all, disability-related claims to succeed under the Equality Act 2010, a key question will be whether or not the employer “knew” of the disability in question. An employer who did not know is usually safe from being found to have breached the Act.

The legal argument is often whether or not the employer “ought reasonably to have” known, or whether they in fact did know despite not having a formal declaration written down.

How do you show you didn’t know?

Employers will often say that they did not know about the disability, and we often have them refer us to initial medical questionnaires or induction forms on which the employee will have ticked “no” under the question about having a disability.

Our first question when advising an employer would always be to ask if there is anything which might indicate an underlying issue. Whilst employers are not expected to be medical experts and “diagnose” their employees, they must do more than simply assume all is well unless told otherwise.

Employers find it understandably frustrating that they often cannot rely on this simple statement, especially if there is evidence which would suggest otherwise.

This issue is particularly relevant to “hidden” disabilities – such as neurodiversity in all its forms – where employees are often less likely to share something they feel to be simply part of their personality, rather than a disability, and employers may make negative assumptions about the employee’s behaviour without understanding its origins.

When this happens, the employer can find that they are in fact liable, especially for failing to make “reasonable adjustments”, and they can make decisions which result in legal action being brought under the Equality Act against them.

Some of the questions worth asking here include: -

• Has there been behaviour which might give rise to questions about the employees’ general health and wellbeing?
• Has the employee had time off sick?
• Has the employee mentioned any kind of condition generally around the office?
• Does the employee display signs which might indicate something underlying – for example do they struggle with social interactions; have difficulty processing things; or struggle with spelling or other written tasks?
• Has the employer asked the employee if there is any reason for any ongoing problems before taking action?

Employers cannot simply take things at face value when investigating issues with employees.

We are required to do more and should give employees the opportunity to reveal underlying conditions or things which might be impacting on issues, even when dealing with an employee with relatively little service.

The employee having difficulty dealing with clients face to face may in fact suffer from autism – unless the employer has made enquiries about why the employee is behaving as they are and given the employee a chance to explain any underlying conditions, they may not be able to avoid liability if they take action as a result.

An employee who has difficulty with written tasks may have dyslexia – and the same applies.

How do we avoid claims?

Employers who do take the right action can usually avoid claims, especially if an employee has kept their condition a secret despite opportunities to reveal it. The issues arise where enquiries are not carried out.

1. Have a robust return to work and other reporting procedures in place and record carefully reasons given by employees for absences.
2. Ensure that they give employees the ability to disclose underlying issues during all internal procedures, at whatever level.
3. Have good clear policies in place to allow employees to bring grievances.
4. Make it clear to employees that the employer supports equal opportunities and that no employee would suffer discrimination for disclosing any underlying health concerns.
5. Remember that many employees may see the label “disabled” as offensive. People with autism, for example, may refuse to tick such a box, but would still be protected within the Act. They may not even think they are disabled too as their perception of what is a disability may well not match what one is defined as under the Act – another reason they may tick “no” on that form!
6. Ensure that all managers are trained in diversity, and also to spot underlying issues. Neurodiversity is increasingly common and managers should have sufficient training to see where this might be influencing a situation and how to get help if it is.
7. Once an employer is on notice, whether constructive or otherwise, use expert advice to assist in knowing what adjustments would be appropriate and ensuring that, where possible, those are put in place. An employer who tackles things up front, with expert help, is likely to have complied with their duties under the Equality Act.