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Should employers be aware of employee disabilities if they are not disclosed?

Tania Goodman & David Malamatenios consider the recent case of A -v- Z Ltd.

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Many employers ask new recruits to complete a questionnaire declaring any disabilities they may have. Unfortunately, it’s not at all uncommon for employees to fail to answer this question accurately or avoid disclosing any disabilities, such as a history of depression or mental illness. In many cases the fear of stigma is too great or the employee worries about creating a negative impression when they start a new job.

This can cause problems if the relationship sours and the employee claims disability discrimination. To what extent can the employee argue that the employer ought to have been aware of their disability notwithstanding the failure to disclose it? The recent case of A v Z Ltd throws some light on this difficult situation.

Facts of Case: A -v- Z Ltd

A deliberately failed to mention her psychiatric conditions when starting work, despite being directly asked by her new employer, Z Ltd, to account for the poor attendance record in her last role. She explained these were due to minor physical injuries from a car accident. She then went on to have 85 days absence (52 days of which were ascribed to physical ailments). She was then signed off work with depression and hospitalised for psychiatric care for a few weeks but did not tell her employer. She continued to provide information about various physical ailments but did not mention any mental health issues.

She was dismissed for poor attendance and brought a claim alleging disability discrimination and won in the Employment Tribunal as three of her medical certificates had referred to her mental health and the Tribunal said this should have prompted Z Ltd to enquire further, so it could not plead ignorance of her disability.

Fortunately for Z Ltd, the EAT overturned this decision and said that whilst the employer ought to have made further enquiries, it was obvious on the facts of the case that they still would not have found out about A’s disability as she was clearly determined to supress this information.

We say:

This is a good, common-sense decision from the EAT and one which is useful to employers. Employers who receive medical information that an employee may be suffering mental ill-health should try to obtain further information from the employee’s GP or via a referral to occupational health and will be criticised if they fail to do so.  However, the employee’s written consent is required to disclose medical information, even when the contract says that the employee must submit themselves to a medical examination in cases of illness, and if the employee refuses to cooperate or supresses the information then the employer will have better grounds for arguing that despite its best efforts it did not know and could not reasonably have been expected to know that the employee had a disability within the meaning of the Equality Act.

In our experience these types of cases are increasingly common so if you have any practical concerns please contact us for further information.

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