Laying down the law

We have recently seen the amazing feats of the athletes at the Paralympics and how their disabilities have not been a barrier to performing at the highest level of their chosen sport

In the majority of cases the disabilities are relatively easy to see, but not all are, particularly if they are hidden disabilities, including those to do with mental health. Within the UK, disability impacts around 19 per cent of the working-age adult population and recent focus on disability inclusion and equality of opportunities for all, means that a significant number of employers, including those in the rail industry, are likely to have at least one staff member with a level of disability. Supporting these employees and ensuring that employment practices do not lead to discrimination is an important activity for management, senior staff and the HR team.

‘Knowns’ and ‘Unknowns’ In many cases, employees will make their employer aware of their disability. This will allow the employer to make relevant adaptions within the workplace so that they do not directly or indirectly discriminate against such an employee. However, it is clear that not all employers are aware of the disabilities affecting their staff, either through actual or constructive knowledge.

This may be because: • The disability was not declared by the staff member when they joined the company. • The disability has occurred since the employee joined the company, is long lasting, but has not been reported by that employee. • The disability is recent or has not lasted long enough to acquire “disability” status under the Equalities Act 2010.

If an employee chooses not to inform his or her employer of their disability, it follows that the employee should be limited in whether they can make a discrimination claim against their employer based on their disability. However, the employer cannot escape their obligations when it is reasonably clear to that employer that there is a disability present.

Recently there have been some court judgements which have provided some helpful guidance for employers and employees alike in clarifying issues regarding obtaining “disability” status and the knowledge of the employer.

Gaining knowledge of a disability status Under section 6 of the Equality Act 2010, a person is deemed to have a disability if they have a physical or mental impairment and this has a substantial effect on their day to day activities which has lasted, or is likely to last, twelve months or more. However, for there to be discrimination allowing a claim under section 15(2) of the Equality Act 2010, the employer must have known or should reasonably have been expected to have known that the employee had a disability.

In the case of All Answers Ltd v W and another, two claimants alleged they had suffered disability discrimination on 21 and 22 August 2018. The parties disputed when the twelve-month period to show a disability had to run for (and whether the impairment would continue for twelve months in any event), given that at the time of the alleged discrimination twelve months had not fully elapsed.

The Court of Appeal decided that the relevant time to consider the impairment was at the time of the alleged discriminatory acts. If the twelve-month requirement had not been met at that time, there was no disability status and therefore no discrimination on the grounds of disability. With the principles of the case set out, the determination of facts was returned to the Employment Tribunal for resolution.

When should an employer know about a disability? In Seccombe v Reed In Partnership Limited, the claimant, Mr Seccombe,had suffered a traumatic event which led to a breakdown and a period of absence for anxiety and depression. The employer, Reed in Partnership Limited (Reed) had been aware of the event but, following Mr Seccombe’s return, assumed that the issue was resolved. Later Reed dismissed Mr Seccombe on grounds of poor performance but Mr Seccombe claimed that the dismissal constituted disability discrimination and/ or that Reed had failed to make adjustment for his disability. Mr Seccombe had had two periods of absence related to anxiety and depression prior to joining Reed but Reed were not aware of this.

The Employment Appeal Tribunal upheld the original decision that Mr Seccombe was not a disabled person and, even if he had been, Reed did not have actual or constructive knowledge of this. Importantly, they found that when Mr Seccombe joined Reed he had completed an equal opportunities questionnaire in which he indicated that he did not have any healthrelated issues or impairment for which Reed might need to make reasonable adjustments. The fact that Reed had made efforts to find out about any disabilities and had a negative

response was a key point in the Tribunal deciding that Reed was not at fault.

Check and communicate The outcome of All Answers is a useful clarification that when assessing whether an impairment is long lasting so as to acquire ‘disability’ status under the Equality Act 2010, the adverse effects must be considered with reference to the facts and circumstances prevailing at the date the discrimination took place. This allows an employer to deal with the facts that exist at the time it makes a decision, rather than trying to predict what could be an outcome at a later date.

Importantly, the decision in Seccombe should help to reduce employers being caught unawares regarding a disability. However, while an employee might not expressly disclose a health condition, an employer might nonetheless be found to know about the disability depending on the circumstances of the case. Employers should also avoid dismissing employees for performance reasons or otherwise under false pretences i.e. where the real reason for dismissal is the employee’s disability.

Finally, where employees are absent due to mental health reasons, it is good practice for the employer to communicate with that individual to determine the extent of the issues and whether there are any steps which can be taken to assist following the return to work. This helps to reduce the possibility that a court will decide that an employer should have known more than it did. From the employee’s standpoint, telling their employer about a potential impairment will reduce the possibility of the employer looking to avoid a potential discrimination claim due to lack of knowledge.

Martin Fleetwood is a Consultant at Addleshaw Goddard’s Transport practice. The Rail Team has over 30 lawyers who advise clients in both the private and public sectors across a wide range of legal areas. As well as contractual issues, the team advises on operational matters, franchises, concessions, finance, regulatory, property, employment, environmental and procurement issues.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

E: info@grammbarriers.com T: 01323 872243 • WhisWall low level noise diffracting barrier • SilentRail Coating (Acoustic and Thermal) • POLYSoundBlok Acoustic Barrier • CONCRETESoundBlok • GRP Fencing