Disabled? Does your employer know?

Posted: 28th September 2018

Post boxNot all disabilities are obvious and employers cannot be guilty of discrimination if they are unaware of a worker’s impairment. The point was made by a decision of the Employment Appeal Tribunal (EAT) concerning a postal worker who suffered from chronic hypertension.

The man’s condition, which was diagnosed four years before he began the relevant employment, meant that he suffered from fatigue, headaches, dizzy spells, breathing difficulties and lack of confidence. However, when filling in recruitment forms for the job, he did not take the opportunity to make the employer aware of his condition and indicated that he did not consider himself to have any form of disability.

When he was subsequently required to work night shifts over the Christmas period, he objected on grounds of his ‘health condition’, but was not specific about what it was. After he failed to attend work on four occasions, the employer dispensed with his services. His complaint of disability discrimination to an Employment Tribunal (ET) was subsequently dismissed.

In rejecting his challenge to that decision, the EAT found that the employer had neither actual nor constructive knowledge of his impairment prior to his dismissal. The employer should have sought further information after being put on notice that he suffered from a health condition. However, a health condition is not the same thing as a disability and the information he had provided on the recruitment forms militated against a finding of constructive knowledge.

Although it was agreed that his health condition amounted to an impairment, the EAT found that the man had failed to establish that he suffered from a disability within the meaning of the Equality Act 2010. He had presented no evidence as to activities of which he was incapable, or which he found difficult. It had thus not been proved that his condition had a substantial and long-term impact on his ability to carry out normal day-to-day activities.