When is an employer expected to know an employee has a disability?

 

This question was examined by the Employment Appeal Tribunal in a recent case.  In that case, the Claimant worked for a company providing casual staff to the Royal Mail Group. He had essential hypertension (raised blood pressure) and his symptoms included headaches, fatigue and breathing difficulties. However, on joining he did not disclose any disability on the health form provided.

He worked for approximately one year, mainly on late shifts finishing at 10pm. He was then offered, and accepted, 8 weeks of night shifts over the Christmas period. Before this period of night shifts started, he emailed his employer stating that a (non-specified) health condition did not allow him to work regular night shifts and that he would like to be booked for shifts ending at 10pm only. He did not provide any specifics connecting his health problems to his ability to do night work.

In the end, the employee did some night shifts but failed to turn up for four of the nights. His employer dismissed him and the employee brought various employment tribunal claims, including claims of disability discrimination.

The tribunal found the employee had not provided sufficient evidence on how his hypertension affected his day-to-day activities, which is a fundamental requirement in determining whether or not an employee is disabled. The judgment added that, even if the worker had proved he was disabled, his employer could not have reasonably known this. The employee had worked night shifts before without difficulty and had denied having a disability when directly asked. 

Our comment

Whilst in this case, the employer successfully defended the disability discrimination claim, the tribunal did comment that a reasonable employer would be expected to make further enquiries when presented by an employee with an unspecified health condition.

We would always advise that employers conduct a full investigation into any reported issues of ill health that employees claim are affecting their ability to work, to minimise the risk of a claim.

Tags employee disability, disability discrimination, employment law, employment tribunal, markel law, sme