An employer discriminates against a disabled employee if it treats a disabled employee less favourably than someone who is not disabled because of something arising in consequence of their disability. If the employer can show that they did not know and could not reasonably have been expected to know that the disabled person had the disability, it will not be discrimination arising from disability.

However, even where the employer does have knowledge of the disability, the unfavourable treatment will not amount to discrimination arising from disability if the employer can show that the treatment is a ‘proportionate means of achieving a legitimate aim’.

It is for the employer to justify the treatment based on the evidence. For example, where the employee has a high level of sickness absence due to a disability which is impacting on the business, and the medical prognosis in terms of the employee’s ability to return to work on a regular basis in the foreseeable future is pessimistic, such that it may be proportionate to dismiss.

In a recent employment appeal tribunal case, the claimant was disabled due to various mental and psychiatric impairments, namely stress, depression, low mood and schizophrenia. However, she had not disclosed these conditions to her employer and had given alternative reasons for health-related absences during her employment. The employer knew nothing more than that the claimant had experienced personal problems and suffered stress as a result. The employer decided to dismiss due to the claimant’s high absence record and poor time keeping. However, the tribunal found that it should have made further enquiries of the claimant. It therefore found that the employer was on notice i.e. had constructive knowledge that the claimant was disabled. The employer appealed.

Based on the tribunal's finding that if further enquiries had been made the claimant would have continued to withhold information about her mental health problems and would have refused an occupational health referral, the employment appeal tribunal found that further investigation would have made no difference. Accordingly, the employer did not have constructive knowledge of the claimant’s disability. The disability discrimination claim therefore failed.

The EHRC Code of Practice, which tribunals take into account when deciding a discrimination claim, states that employers must do all they can reasonably be expected to do to find out if a worker has a disability. Generally speaking, where an employer suspects that an employee may be suffering from a condition qualifying as a disability (e.g. because they have a high level of sickness absence), an employer would be expected to find out more by referring the employee to occupational health or obtaining consent from the employee to write to their GP or consultant to obtain a medical report. 

Whilst the employer was ultimately successful in defending a disability discrimination claim in this case (although not at first instance), our advice is that it will be difficult for an employer to justify dismissing an employee because of something arising from a disability (such as where an employee is dismissed or disciplined due to high sickness absence as a result of a disability) where it does not follow a fair dismissal process and fails to take into account the EHRC Code of Practice.

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