When disability goes unknown

Wilson Browne

1st September 2019

Legal Briefing

Wilson Browne

By Jennie Jahina

Head of Employment Law

Wilson Browne

SOCIETY (and with it employment law) has made huge leaps forwards, to make the world a fairer place for everyone - including those with a disability. With those registered disabled now making up 22 per cent of the UK population - more than one in five. Employers will be aware (or should be) of their obligations not to discriminate on grounds of disability.

Often, a key element for establishing a claim is showing the employer knew, or should have known, about the disability. Lack of knowledge of a disability is often a first line of defence against certain disability discrimination claims. Practically, it can be difficult to identify when, if ever, this knowledge was acquired.

Where individuals are on long-term sick leave, or otherwise disclose information about medical conditions, employers often seek medical reports prior to employment processes starting. But what happens if an employer only becomes aware of a disability after a process has concluded with a dismissal?

The EAT (Employment Appeal Tribunal) considered this question in a case where the individual only disclosed their disability when appealing against dismissal. The employer deemed it had insufficient knowledge to be liable. The EAT disagreed. Difficult as it may be to digest, it concluded that if a disclosure is made as part of a disciplinary process (even at the appeal stage after the decision to dismiss has been made) the employer may still be liable if it doesn't factor that knowledge into its appeal decision. The obligation to consider whether any individual would be deemed disabled continues to the last stages of a dismissal process.

Our advice? It's never easy being an employer and there is always a fine line to walk! The law, and employment law, can be confusing - counterintuitive even. Minimise your risk and exposure to costly and damaging claims by staying alert to potential claims until the full process has completed.

For more information, contact Wilson Browne Solicitors on 0800 088 6004 or visit www.wilsonbrowne.co.uk

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