Knowledge of the disability
Does an employer, service provider etc need to know of the disability in order to be liable for discrimination?
- For some types of claim there can be a defence if the employer did not know of the disability.
- The defence does not apply if the employer could reasonably have been expected to know of the disability.
- The employer will normally be treated as knowing what one of it's employees knows.
- Even if the defence does not apply, an employer's duty to make adjustments may be reduced if it did not have advance notice.
On a claim for 'discrimination arising from disability', the employer or service provider etc has a defence if it shows that it did not know, and could not reasonably have been expected to know, that the individual had the disability (s.15(2) EqA).
Employers have a 'lack of knowledge' defence as regards the duty to make reasonable adjustments. However, this specific defence does not apply to service providers and others.
The employer has a defence if it did not know, and could not reasonably be expected to know, that:
- the person had a disability; and
- was likely to be placed at the substantial disadvantage which triggers the reasonable adjustment duty. (EqA Sch 8 para 20, amended by SI 2011/1060, article 6).
Will knowledge by any employee or indeed agent of an employer or business be sufficient? Probably yes.
The Employment Code of Practice at para 5.17 says: "If an employer's agent or employee (such as an occupational health adviser or a HR officer) knows, in that capacity, of a worker's or applicant's or potential applicant's disability, the employer will not usually be able to claim that they do not know of the disability, and that they cannot therefore have subjected a disabled person to discrimination arising from disability." Para 6.21 of the same Code is similar, dealing with reasonable adjustments by employers. Para 6.19 of the Services Code of Practice is also similar.
There may perhaps be an exception for occupational health advisors, if the employee or job applicant did not consent to the information being revealed. This is because OH practitioners usually have an obligation not to disclose information without the individual's consent.
No actual knowledge - obligation to find out?
The statutory Codes of Practice say that an employer or service provider must do all they can reasonably be expected to do to find out if a person has a disability or, in the case of reasonable adjustments in employment, be placed at a substantial disadvantage (Employment Code of Practice para 5.15 and 6.19, Services Code of Practice para 6.16). What is reasonable will depend on the circumstances - the Codes of Practice give some examples.
The obligations of an employer - or perhaps a college or university - to find out, especially as regards an existing employee or student, are likely to be greater than someone providing a one-off service. However, the Services Code of Practice points up (in the context of discrimination arising from disability) that even a one-off service provider has obligations:
From Statutory Code of Practice
Where there is no ongoing relationship, a service provider will nevertheless need to consider whether there is a disability and, as a result, the particular treatment will amount to unfavourable treatment because of something arising in consequence of their disability. This may involve something as simple as giving a disabled person the opportunity to disclose their disability by asking them if there is any reason for their behaving in a particular way.
Example: In a busy café with only counter service, one of the staff notices a customer is sitting at a table without ordering. It is the café's policy to ask people who are taking up tables without having ordered anything to leave. The staff member goes up to the customer's table and asks if he needs any help. The customer discloses that he has diabetes and his legs are hurting him, meaning that it would be difficult for him to go up to the counter and order food and drink himself.
From the Services Code of Practice, paragraph 6.18.
The Employment Code of Practice, para 5.14, says employers should consider whether a worker has a disability even where a disability has not been formally disclosed as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. It is correct that some people with a communication disability will not think of themselves as 'disabled'.
Letting an employer or (in some cases) a service provider etc know in good time is obviously sensible as it means any adjustment required is more likely to be made in practice.
However, the legal duty to make reasonable adjustments may also be reduced if the employer, for example, was not told in adequate time that the adjustment would be required. This is because what it would be reasonable for them to have to do may be reduced. (It is assumed here that the 'lack of knowledge' defence above does not apply.) Here are two examples of cases about job recruitment and stammering, firstly one in which lack of notice contributed to there being no breach of the reasonable adjustment duty.
Case: too late to arrange a second interviewer
The claimant found the use of a single interviewer at an assessment centre unsettling because the lack of eye-to-eye contact affected his stammer. (Perhaps the single interviewer had to lose eye contact to take notes). He would have preferred two interviewers. The tribunal held that it would not have been reasonable to arrange a second interviewer for the claimant given there was no advance notice he had a stammer.
Shirlow v Translink (link to stammeringlaw.org.uk), Industrial Tribunal Nothern Ireland, June 2008.
A case where there was held to be a breach of the duty to make reasonable adjustments:
Case: disadvantage was clear and steps could have been taken
The claimant said in his job application that he had a stammer, but did not request adjustments where the form asked about them. The Employment Tribunal found that by the time of the interview it was obvious to the interviewers that the applicant was under a substantial disadvantage in the session due to his severe stammer. The employer did allow more time for the interview, but the amount of information the applicant was able to convey compared to other candidates was much reduced.
The Employment Tribunal held that the employer was in breach of its obligation to make reasonable adjustuments. The employer could for example, without disruption or significant expense, have taken immediate practicable action to prevent the disadvantage suffered by the applicant by adjourning the question and answer session and devising, with the co-operation of the applicant, a suitable format for this element of the recruitment process which would have given the applicant an equal opportunity to that of the other candidates - eg written answers could have been sought to the pre-set questions, and/or use of technology could have been considered.
Yaqub v Calderdale Council (link to stammeringlaw.org.uk), Employment Tribunal, July 2003