Declaring a disability

The Government website reminds us that 'The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society'.

The Act replaced previous anti-discrimination laws with a single Act, making the law easier to understand and strengthening protection in some situations.

If an employee is subject to unlawful treatment on or after 1st October 2010, the Act applies.

The Act protects employees by introducing the idea of 'discrimination arising from disability'.

The Employment Appeal Tribunal (EAT) recently heard a case involving a casual worker who was employed by an agency and provided services to the Royal Mail Group. The employee was employed from November 2015 and worked on a late shift. He continued this job for about a year. He then accepted a role to work night shifts over the Christmas period. The employee informed the agency that he was unable to work a regular night shifts due to a 'heart condition'. He then failed to attend the Royal Mail centre he was working at on 4 separate occasions. Perhaps unsurprisingly, the Royal Mail centre informed him that they did not want him to return to work for them. The employee brought Employment Tribunal proceedings and made a number of claims, one of which was for disability discrimination.

At a preliminary hearing, the Tribunal had to consider whether the employee was a 'disabled person' under the Equality Act. It was found that he was not a 'disabled person' and in any event the agency did not know and could not reasonably have known about his disability due to the fact that the employee had not informed them. The employee appealed decision.

The EAT held that the employee had not taken steps to make the agency aware of any health or other issues. As a result, the EAT held that the employee had not provided evidence to show that his health condition met the definition of 'disability' as set out in the Act. Accordingly, his appeal was dismissed.

This is an interesting decision for employers and demonstrates that an employer will not be deemed to have knowledge of an employee's disability when only vague descriptions of a 'health condition' are given as a reason for absence.

However, employers are reminded that employees may have a disability even if one has not been disclosed by the employee. Accordingly, employers should take all reasonable steps to establish an employee's disability status.

To discuss this or any other employment related matter, contact us.

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