Reasonable Adjustments: Employer knowledge
Under the Equality Act 2010 an Employer is under a duty, pursuant to Section 20, to make reasonable adjustments for employees with disabilities. In particular there are 3 areas in which an employer has to consider reasonable adjustments and they are as follows:
Equality Act 2010
(3)The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.
For the most part employers generally co-operate with this duty and employees who do suffer from a disability will find that their employers will do what they can to help manage the situation. There can however be a problem when an employee fails to inform the employer of their disability or informs them they have a disability but then does not back it up with medical evidence (self diagnosis). In this case the question of knowledge the employer possesses is put into the limelight.
There has been a case in the EAT: Cox v Essex County Fire and Rescue Service which has hopefully cleared up the situation regarding what knowledge an employer should be in possession of before the duty to make reasonable adjustments arises.
Readers should bear in mind that this case was pre-Equality Act 2010 and so included references to the Disability Discrimination Act 1995. However there was still a duty to make reasonable adjustments.
What happened in the Case?
The facts of the case are as follows. When the Claimant first applied for a job with the Respondent he indicated that he was mildly depressed following previous redundancies. He also told them that he was not suffering from any other illness or condition.
The Claimant suffered an injury in 2008 whilst at work and made a claim for personal injury against his employer. However in 2009 his employer began to have doubts about the performance capability of the Claimant. When the employer brought him into a meeting to discuss the performance the Claimant became upset stating that he had severe depression and had an accident at work. His behaviour also became more erratic.
He was sent to occupational health and there were enquiries as to whether the anti-depressants could have caused this behaviour. Occupational Health did not believe that he would be considered disabled in line with the 1995 Act. Occupational Health and the Employer tried to get medical reports from the Claimant’s GP however consent was not given.
The Claimant then made an announcement that he had self-diagnosed himself with bi-polar disorder. There was subsequently a doctors report which stated “diagnosis:?bipolar affective disorder” however a later report indicated that the more severe symptoms were absent.
Subsequent to this the Claimant was dismissed and he then made a claim at the tribunal for disability discrimination. At tribunal there was acceptance that the Claimant was disabled however they found that the employer had not known and could not reasonably have been expected to know that the Claimant was disabled in accordance with the Act and therefore had no duty to implement reasonable adjustments.
The Appeal Tribunal agreed with the tribunal and that they had followed the correct tests. They agreed that the Employer only had the employee’s own self diagnosis and assessment of symptoms. On top of this the Employer had asked all the correct questions and so there was no duty on them to apply reasonable adjustments.
What does this mean?
So subsequent to this case it is clear that the employer needs to have clear knowledge of the disability to be able to implement reasonable adjustments. This can not just be the self assessment of the employee, especially if they come forward with it halfway through their employment. It needs to be backed up by medical reports from either GP’s or other trained professionals. Without this there isn’t necessary a requirement for them to implement reasonable adjustments.
However if you have informed your employer about your disability and have supported it with evidence then they do have a duty to bring in reasonable adjustments. If they have failed to do so then there may be a case that can be taken forward.
If you believe you have a case please do not hesitate to contact us on 0800 014 8727 where one of our professional team will be able to discuss the situation with you and advise you on the feasibility of your case.