Employer knowledge of employee’s disability
Employer knowledge of employee’s disability
The EAT has held that despite an employee advising that he was suffering from bipolar disorder, the absence of a definitive diagnosis due to the employee failing to consent to the employer obtaining a medical report, meant that the employer did not know, and could not have reasonably been expected to know, that the employee was disabled.
On 19 March 2007, Mr Cox (claimant) started employment with Essex County Fire and Rescue Services (respondent) as deputy finance director and reported to Mr Clayton. When applying for his post, he had completed a pre-employment medical questionnaire, in which he indicated that he had suffered from mild depression due to redundancies and at the date of completing the questionnaire was taking anti-depressants. He answered ‘no’ to the question ‘Do you have any health condition or disability which affects your ability to carry out normal day-to-day activities?’
On 3 September 2008, the claimant suffered an accident at work, slipping on water and falling down at least 12 hard steps. He was off work until 29 September 2008 and subsequently issued personal injury legal proceedings against the respondent. By April 2009, Mr Clayton was concerned about the claimant’s capabilities to do his job; he had failed to complete various targeted assignments and had not been effectively involved in senior management meetings. He wrote to the claimant about this and the claimant in response reminded Mr Clayton of his accident in September 2008, saying that he had suffered severe concussion and that he was seeing a cognitive behaviour therapy counsellor. The claimant also told the head of HR that he had severe depression. The respondent subsequently referred the claimant to Occupational Health (Dr Murphy). Dr Murphy’s report advised that the claimant was not likely to have a disability which fell within the scope of the Disability Discrimination Act 1995 and stated:
‘Mr Cox believes he is undertaking his duties successfully, and in that instance sees no need for management support. He acknowledged some performance matters were raised in June, that he feels occurred as a consequence of then persisting symptoms of his fall, these symptoms are resolved and he feels no more performance concerns are active. He recognises that he may be more aggressive than usual in his attitude to the workplace, but not inappropriately so. If performance or conduct issues are thought to be present at the moment, my advice is that they are best dealt with via appropriate management procedures.’
On 12 August 2009, Mr Clayton advised the claimant of allegations that had been made about his behaviour and communications with colleagues. The claimant did not refer to the workplace accident as the cause of his behaviour which he considered was entirely acceptable. He did not want assistance or guidance. On 8 September 2009, Mr Cox was suspended from work pending an investigation into alleged “aggressive, threatening and intimidatory attitudes and behaviours” towards colleagues which, if substantiated, would amount to gross misconduct. The claimant raised three grievances.
On 18 September 2009, the claimant sent an email to Mr Clayton stating that he had been suffering from bipolar disorder since July 2009 and that he had recently seen a psychiatrist. A report of the meeting with the psychiatrist noted:
‘Diagnosis: Bipolar disorder…
The picture described by Mr Cox and his wife does seem to suggest that he might have experienced a Hypomanic Episode which seems to be gradually settling down.’
The claimant was referred back to Dr Murphy who advised that he was seeking reports from the claimant’s GP and specialist as it was not clear that bipolar disorder was “an active diagnosis” and stated that:
‘Given the strength of feeling Mr Cox displays with regard to these various matters, I am of the opinion that there is little or indeed no prospect of him every returning to your employee [sic] (quite apart from any underlying medical conditions which may or may not be present). This though should not of course prevent continuing efforts to resolve his grievances and the disciplinary matters.’
The claimant subsequently withdrew his consent for his GP and specialist to respond to the request for disclosure of his medical condition on the advice of his personal injury lawyer.
The claimant’s grievances were rejected. Following disciplinary hearings in December 2009 and February 2010, he was summarily dismissed with effect from 9 February 2010. The claimant presented an ET1 claiming disability discrimination, unfair and wrongful dismissal.
By the time of the ET hearing, the respondent accepted that the claimant was, at the relevant time, disabled by reason of a mental impairment; namely he suffered from a bipolar disorder. But the ET held that, at the relevant time, the respondent did not know, and could not reasonably have been expected to know, that the claimant was disabled. The respondent had done all that could reasonably be expected of it to find out whether the claimant had a disability; it had asked the right questions but the claimant had declined to release certain medical information and there had been “no definitive diagnosis of the claimant being bipolar”. The claimant’s disability discrimination claim was therefore dismissed. The claimant appealed.
The EAT (HHJ Birtles presiding) dismissed the appeal. It applied the EAT’s decision in Wilcox v Birmingham Citizens Advice Bureau Services Ltd UKEAT/0293/10 in which the EAT (Underhill P) stated: ‘…it would be wrong to find actual or constructive knowledge on the part of the Respondent before such time as it should reasonably have obtained authoritative medical advice…the statute does not require the employer to know (actually or constructively) the precise diagnosis of a putative disability, it does require that he should know (actually or constructively) that the employee is suffering from a mental impairment whose adverse effects are substantial and long-term.’ The absence of a “definitive diagnosis” that the claimant was bipolar was a correct statement of the factual position since the employer only had the employee’s word that he was displaying conduct typical of the symptoms of some persons who suffered from bipolar disorder treat with lamictal and his own self analysis. The medical evidence available queried whether the claimant might be bipolar. The ET had been justified, as the judges of fact, to find that the respondent had asked all the right questions. The ET’s reasoning and conclusions had been legitimate.
What’s the importance of this case regarding employer knowledge of disability?
This decision is relevant to the question of what actual and constructive knowledge an employer needs under the EqA 2010 in order for it to know that a person is disabled. In both this case and Wilcox the employee in question had failed to fully co-operate with the employer’s attempts to obtain medical information on their condition. However, it is not necessary for mental impairment to be clinically well-recognised for the employee to be deemed to have a disability. Therefore, the absence of a “definitive diagnosis” does not seem to necessarily mean the employer does not have constructive knowledge. Unfortunately in this case, it does not appear that the EAT considered whether there was sufficient evidence at the relevant time before the employer from which the employer ought to have known that the employee was disabled as defined in statute.