Employers can’t assume that an employee is not disabled, simply because occupational health has not said so in clear terms. This relates to the concept of constructive knowledge which often arises in disability discrimination cases.
What is constructive knowledge?
Constructive knowledge means that you may be treated as knowing about a disability even if nobody has formally confirmed it. If there is enough information available to raise the possibility of a disability, you are expected to make further enquiries about the health of your employee, rather than ignore the issue.
Cunningham v BBC
In Cunningham v BBC, the employee had type 2 diabetes, which caused significant tiredness. The BBC knew about her condition and had made some changes to her shifts. However, it continued to require her to work a late shift that finished at 12.30am.
After the employee made an error during one of these shifts, she was disciplined and brought disability discrimination claims. The BBC argued that it didn’t know she was disabled at the time.
The EAT disagreed.
Under the Equality Act 2010, a person is disabled if they have a physical or mental condition that has a substantial and long-term effect on their ability to carry out normal day-to-day activities. Whether someone meets this definition is a question of fact. It is not something that occupational health or a GP decides.
Knowledge of condition
The BBC knew about the employee’s diabetes, it understood that it was causing fatigue, and had received occupational health advice discussing reasonable adjustments. Taken together, this meant the BBC knew, or should have known, that the employee might be disabled.
4 takeaways for HR
- Don’t focus solely on whether an employee has been formally labelled as disabled
- Carefully consider the impact their condition is having on their day-to-day activities
- Decide whether further investigation or workplace adjustments may be needed
- Take a proactive approach which can help reduce the risk of disability discrimination claims
Further reading
- Disability Discrimination – EHRC
- When is an employee ‘disabled’ under the Equality Act 2010? – Hunter Law
- Employee Appeal Tribunal overrules Tribunal that failed disabled employee – Hunter Law
If you enjoyed this blog then perhaps you’d like to sign up to our monthly newsletter. We’ll keep you updated on what’s new in employment law.
The team at Hunter Law is here for you. We can handle your HR issues, finesse your policies, and keep you up-to-date on evolving legislation. Please get in touch with our legal team, we’d love to help.
