Uncooperative employee not disabled

Posted 08/11/2013

Employers owe duties under the Equality Act 2010 not to discriminate against Employees who are disabled. Knowing whether an employee is disabled is not always straightforward and where there is uncertainty, this often relies on co-operation by the employee to provide access to medical records and submit to medical examination.

Where an employer does not know or could not reasonably be expected to know, upon reasonable enquiry, that an employee is disabled, then they cannot be in breach of their duties not to discriminate and, for example to make reasonable adjustments.The recent decision of the Employment Appeal Tribunal (EAT) in the case of Cox –v- Essex County Fire and Rescue Service provides helpful reassurance to employers that they may not be fixed with requisite knowledge of a disability where an employee fails to cooperate in establishing a diagnosis.Mr Cox had completed a pre-employment medical questionnaire for the Fire Service and advised that he had suffered from mild depression but denied that he had a disability. Years later, following an accident at work, performance concerns were pursued by the Fire Service and this culminated in a suspension for allegations of aggressive and threatening behaviour. Perhaps predictably, counter grievances were raised.During this process Mr Cox stated that he had been suffering from bipolar disorder for several months. A subsequent report from Occupational Health questioned this diagnosis. The Fire Service requested consent to approach Mr Cox’s GP and specialist consultant, to obtain more information about his medical condition and this alleged diagnosis. Mr Cox refused to consent to this. He was ultimately dismissed for gross misconduct and brought claims for unfair dismissal and disability discrimination.The Tribunal held, and the EAT upheld, that at the relevant time, the Fire Service did not know and could not reasonably have been expected to know that Mr Cox was disabled. It considered that the employer had done all that could reasonably be expected of it to find out whether Mr Cox had a disability. It had asked the right questions, but Mr Cox had declined to release certain medical information and therefore there had been “no definite diagnosis” of Mr Cox being bipolar.The Service only had Mr Cox’s own assertion that he was displaying conduct typical of the symptoms of someone who suffers from bipolar disorder, and the only medical evidence the Service had queried that diagnosis.This was a fine balancing act for the Tribunal and the EAT. The law does not require that an employer should know the precise diagnosis of a suggested disability. It does require that the employer should know (or ought reasonably to know) that the employee is suffering from an impairment, whose adverse effects are substantial and long term.

Interestingly, in the case of a mental impairment, this does not need to be clinically well recognised to render an individual disabled. However there was sufficient doubt upon the facts in the case of Mr Cox to consider that the Service should be fixed with constructive knowledge of a disability at the relevant time, in the absence of a definite diagnosis.

The Cox case is consistent with the earlier EAT decision of Wilcox –v- Birmingham CAB Services Limited in which Mrs Wilcox was suffering from what she described as a travel phobia and claimed discrimination.

The CAB’s Occupational Health report suggested that only a full psychiatric assessment could determine the actual existence of travel phobia, but before this could be obtained she resigned and brought a claim. The Tribunal directed the parties to jointly commission a report from a consultant psychiatrist to establish whether Mrs Wilcox was suffering from a disability at the relevant time.The Tribunal held that the CAB did not know and could not reasonably have been expected to know that Mrs Wilcox suffered from a disability at the relevant time, and until the consultants report had been obtained. This meant that the CAB had no obligation to make reasonable adjustments and had not therefore discriminated against Mrs Wilcox.These are fact sensitive cases, however they are nonetheless useful for employers as a guide when dealing with an uncooperative or reluctant employee in these circumstances, and in order to successfully defend potentially expensive claims for compensation.For individual advice, please contact Julian Outen on 01473 261324 or email julian.outen@ashtonslegal.co.uk