One in four employers would not hire a disabled person if they have knowledge of a disability, according to a survey [link to this] that Leonard Cheshire published recently. An alarming statistic to say the least. Employees and employers alike will find that the devil is in the detail. There is a very important detail to know when it comes to disability discrimination.

What constitutes disability discrimination?

There are six types of disability discrimination

  1. Direct (unequal treatment because of a disability)
  2. Discrimination ‘arising from’ (unequal treatment because of a related reason, eg absence)
  3. Indirect (a one-size-fits-all policy that is harsher on the disabled)
  4. Harassment (hostility because of a disability)
  5. Not making reasonable adjustments for a disability
  6. Victimisation (retaliation for bringing a discrimination complaint)

Knowledge of a disability is needed for 1, 2, 4 and 5. So an employer can’t be guilty of direct discrimination if it doesn’t know the employee is disabled. But does this mean actually knowing, or strongly suspecting or does having an inkling count?

Time to speak up?

What happens when you hide your disability from your employer? lets look at the case of A Ltd v Z.

The claimant in this case didn’t tell her employer that she had mental health issues. It dismissed her because she frequently took days off from work. These were days off which she had to take off because of her illness. Was it discrimination to dismiss her?  The question is whether an  employer can be guilty of disability discrimination if they didn’t know their employee was disabled.

The short answer is no. An employer can’t be liable for disability discrimination if they didn’t have knowledge of the disability. However, the longer answer is that in some cases the law will presume that an employer knows about their employees disability. This is ‘constructive knowledge’. The law recognises this in cases where the employer ought to have known or could have found about the disability of their employee. Red flags include lots of absences and visible symptoms.

The employee’s claim failed as the tribunal found even if the employer had inquired further into the health of the claimant, she wouldn’t have shared her health information. So the employer couldn’t have found out about her disability.

Does this case set any precedent?

It is still possible to succeed in a disability discrimination case, even if the employer is unaware. In cases like this the employer must have ‘constructive knowledge’ of their worker’s disability.

Can an employee be dismissed while on long- term medical absence?

An employee can be dismissed while on medical leave. But it can’t be because of medical leave or a disability, unless it is justified.

By Faize Tahir.

Image used under CC courtesy of Marco Verch