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Facts
Ms Hall (H) was recruited by the Department for Work and Pensions (DWP). As part of the pre-employment process H filled out a health declaration form, but declined to provide any information about disability or long-term health conditions. She also refused to allow the DWP to contact her doctor. H in fact suffered from a psychiatric condition which required her to take medication. Unfortunately, she was not taking it.
Consequently, soon after commencing her employment she was involved in a series of incidents with other members of staff. She was issued with an oral warning that disciplinary action would follow unless she maintained the required standards of conduct.
At around the same time, H was applying for a disabled person’s tax credit and asked her manager to sign the form, which he then sent to HR to process. A number of further incidents followed involving some verbal abuse and minor physical contact.
H was suspended, a disciplinary process was commenced and H was eventually dismissed on the grounds that she had failed to maintain the requisite departmental standards of behaviour by acting in a rude and threatening manner.
H brought proceedings under the Disability Discrimination Act 1995 (DDA) (see box, right) claiming that she had been less favourably treated for a reason relating to her disability.
First instance tribunal
The first instance tribunal concluded that there had been less favourable treatment and then looked at the question of whether the treatment in question was justifiable. It found that the DWP had constructive knowledge of H’s disability and was not justified in treating her in the way that it did.
In addition, the DWP had failed to comply with its duty to make reasonable adjustments because it had not even considered making any, again in spite of having constructive knowledge of H’s disability.
The tribunal fixed the DWP with constructive knowledge of H’s disability based on a number of factors including:
1) the fact that H had refused to provide any information about her health condition
and had refused permission to contact her doctor;
2) the fact that one of the interviewing panel had known her for some time, was acquainted with her former husband and did not mention anything about H’s health or disability issues;
3) the fact that H was applying for a disabled person’s tax credit, and the form relating to this was seen both by her manager and the HR department which had resulted in no inquiry by them to her; and
4) the fact that managers had been aware of and were concerned by her bizarre conduct.
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Disability Discrimination Act 1995: employers’ duties
The Disability Discrimination Act 1995 (as amended) makes it unlawful to treat a disabled person less favourably for a reason related to that person’s disability unless the employer can show that the treatment in question is justified. An employer will also be found to have discriminated on the grounds of disability if it fails to comply with a duty to make a reasonable adjustment.
An employer will be under an obligation to make a reasonable adjustment if a provision, criterion or practice of the workplace or a physical feature of the employer’s premises places a disabled employee at a substantial disadvantage.
There is, however, no duty to make a reasonable adjustment if the employer did not know and could not reasonably be expected to know that employee has a disability and was likely to be put at a substantial disadvantage.
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EAT decision
On appeal the EAT held that the tribunal had made adequate findings of fact to justify its conclusion that the DWP was fixed with constructive knowledge of H’s condition.
The DWP argued that it could not be a failure to make a reasonable adjustment which would not have worked because H would not take her medication. The EAT rejected this. Although a reasonable adjustment would have made no difference because H was not taking her medication, the DWP was in breach because it had not addressed its mind to the issue of reasonable adjustments at all.
Differing approach of tribunals and courts
Employment tribunals are showing an increasing willingness to fix an employer with knowledge of an employee’s disability. This is in contrast to the approach of the courts in personal injury cases.
For example, the Court of Appeal in Hartman v South Essex Mental Health and Community Care NHS Trust and others held that it was not right to attribute to the employer knowledge of confidential medical information that was supplied on the pre-employment questionnaire. It referred to the paragraph published in Medical Ethics Today which, it said, correctly summarised the position:
‘The fact that a doctor is a salaried employee gives no other employee of that company any right of access to medical records or to the details of examination findings. With the employee’s consent, the employer may be advised of any relevant information relating to a specific matter on a strictly need-to-know basis. The significance of which the employee clearly understands. If an employer explicitly or implicitly invites an employee to consult the occupational physician, the latter must still regard such consultation as strictly confidential.’
The approach of the tribunals has always been much more pro-employee in DDA cases. For example, in London Borough of Hammersmith and Fulham v Farnsworth the EAT held that the employer’s occupational health physician was not bound by any duty of confidence owed to the employee not to disclose details of her medical history to the decision-makers within the council. The physician was acting on behalf of the employers, the applicant was aware of this and had completed a form providing information and giving her consent to medical information being provided to the employer. It ruled that the employer’s actual knowledge was irrelevant to the question of whether the applicant had been treated less favourably for a reason related to her disability and whether her treatment was justified. The occupational health physician acted as agent for the employer and the physician’s knowledge of the applicant’s disability had to be imputed to the employer.
DWP v Hall goes even further, as the employer was deemed to be fixed with knowledge that had not been expressly disclosed by H to anyone within the employer’s organisation. In fact, she had taken great pains not to provide any health information at all.
Looking at the factors from which the tribunal considered that an inference of disability should have been drawn, H’s bizarre behaviour and the disability benefit form were arguably enough to put the employer on notice. But is it reasonable to impute knowledge because of a refusal to fill in a medical questionnaire and because one of H’s interviewers knew her? Is it reasonable to assume that friends and acquaintances are aware of an individual’s physical or mental impairments? Clearly the EAT thinks it is.
Comment
The case illustrates that it is essential to have open lines of communication between occupational health, the HR department and managers. Where an individual’s behaviour is problematic (for whatever reason, eg heightened absenteeism and bizarre behaviour in the workplace) it must be investigated and consideration given as to whether or not the conduct at issue stems from some form of disability.
In addition, it would now appear to be prudent to make further enquiries if an individual declines to fill in a pro-forma medical questionnaire as part of the recruitment process.
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