In Cox v Essex County Fire and Rescue Service UKEAT/0162/13 the EAT considered whether an employer had not known and could not have been expected to know that an employee was disabled.
The EAT has upheld a tribunal’s decision that, despite an employee advising that he was suffering from bipolar disorder, the absence of a definitive diagnosis meant that the employer did not know, and could not have reasonably been expected to know, that the employee was disabled.
The tribunal, as the arbiter of facts, had been entitled to find that the employer had asked the right questions and was justified in concluding that the employee was not disabled.
The tribunal took particular note of the fact that the employee had withdrawn consent for his GP and specialist to provide information to the employer’s occupational health service. The case is a reminder to employees of the potential consequences of failing to co-operate with their employer’s attempts to obtain medical advice on their position.
While it involved provisions of the DDA 1995, the EAT’s decision is relevant for claims proceedings under the EqA 2010 and the question of how much, or what, an employer needs to (actually or constructively) know in order for it to know that a person is disabled.
The EAT in both this case and in Wilcox stressed the fact-specific nature of the tribunals’ decisions. In each case the employee had failed to fully co-operate with the employer’s attempts to obtain medical advice on their condition.
In this case, the tribunal considered that the employee wished to establish a causal link between his workplace accident and bipolar disorder, presumably to maximise his claim for personal injury compensation, and that this appeared to have resulted in him withdrawing consent for the disclosure of relevant medical information.
However, the definition of a disabled person is one who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. A mental impairment no longer needs to be clinically well-recognised to render the sufferer disabled, as was originally the case under the DDA 1995.
Therefore, while an employee’s failure to co-operate in establishing a “definitive diagnosis” may mean that an employer lacks the requisite knowledge of disability, does it necessarily mean that it will do so?
The passages of the tribunal’s decision set out by the EAT suggest that it did not consider whether, despite the absence of a definitive diagnosis, there was nevertheless sufficient evidence before the employer at the relevant time from which it ought reasonably to have known that the employee met the statutory definition of being disabled by reason of a mental impairment.
Source: Cox v Essex County Fire and Rescue Service UKEAT/0162/13 courtesy of The Practical Law Company October 31 2013