Can an employer be guilty of disability discrimination if it doesn’t know an employee is disabled?
Aaron Hayward, employment law specialist at DJM Solicitors answers…
While the straightforward answer to this question would be no, there are a few conditions attached that both employers and employees should be made aware of to avoid a disability discrimination case.
Under the Equality Act 2010, an employer can defend claims of direct disability discrimination on the basis that it did not, and could not reasonably be expected, to know that an employee was disabled.
Employees are well within their rights to keep these facts to themselves, however if they choose to keep their disability private, they cannot expect the employer to make adjustments for them.
For its part, the employer must do all it can be reasonably expected to do to find out if an employee has a disability. If an employee does not formally disclose a disability, an employer must still consider if there may be a disability present. If the employer is shown to suspect that a disability exists but not take action, it could be open to accusations of discrimination. Where it is apparent that an employee has issues or is showing behaviour which could be linked to a disability, the employer should consider raising some enquiries.
It is important to note that if another employee or an outsourced supplier such as an occupational health adviser or recruitment agent knows about the disability, it is likely that the employer will be considered to be reasonably expected to have knowledge of the disability and so will be open to legal action in a discrimination case.
Indirect disability discrimination
Under a claim of indirect disability discrimination, an employer’s knowledge of a disability is not relevant.
If an employer is to impose a ‘provision, criterion or practice’ (PCP) on its employees and puts employees with a disability at a distinct disadvantage compared to other employees, the employer can be accused of discrimination if the PCP isn’t shown to be a means of achieving a legitimate business aim.
To avoid a discrimination case, we would advise employers to ensure they are aware of all their employees’ health issues, within reason. We would also advise against introducing any new policies that could possibly disadvantage someone with a disability. If you are unsure, check the policy with a lawyer first.
By Aaron Hayward at DJM Solicitors