Hidden disability risks at work
A recent Employment Appeal Tribunal (EAT) is a reminder that employers cannot rely solely on a formal medical opinion when assessing whether an employee may be disabled. If there is enough information to suggest a condition is having a substantial impact on an employee’s day-to-day activities, employers may be expected to take further steps and consider reasonable adjustments.
Disability discrimination and occupational health advice
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 did not know she was disabled at the time. The Employment Appeal Tribunal 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.
The Employment Appeal Tribunal found that the BBC knew about the employee’s diabetes, 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.
Constructive knowledge of disability
This is known as constructive knowledge. In simple terms, it means an employer 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, employers are expected to make further enquiries rather than ignore the issue.
For HR professionals, the lesson is clear. Don’t focus solely on whether an employee has been formally labelled as disabled. Instead, consider the impact their condition is having on their day-to-day activities and whether further investigation or workplace adjustments may be needed. Taking a proactive approach can help reduce the risk of disability discrimination claims.
Here to help
Our Employment team at Longmores helps employers manage disability-related issues at work, including reasonable adjustments, occupational health advice and the risk of discrimination claims. If you need advice on disability discrimination, reasonable adjustments or managing health-related workplace issues, please contact Richard Gvero, Senior Partner, Head of Commercial and Employment.
Please note, the contents of this article are provided for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.
