Should the one in six employees with a disability tell employers about their medical condition?
Some (but not all) types of discrimination require the employee to show that the employer knew about the disability. The law requires employers to make reasonable adjustments for disabilities. So generally, the employment lawyer’s answer would be ‘yes’.
In a recent case at the Employment Appeals Tribunal (EAT), judges had to decide whether an employer knew about an employee’s disability. He hadn’t told them outright, but if an employer ignores enough ‘red flags’ then it is deemed to have knowledge about it.
This case reminds us that what the employee chooses to tell colleagues can be relevant to the employer’s state of knowledge and gives us guidance on what can amount to a red flag.
Reed dismissed Mr Seccombe after three absences at work; the third due to a “traumatic event”. He claimed that his absences were due to severe anxiety and depression. The employer claimed not be aware of it because he hadn’t mentioned any medical conditions in his pre-employment health questionnaire. He lost his case at the tribunal and he appealed, saying that the tribunal had made a legal mistake. He claimed the tribunal should have found that he had given his employer had enough red flags to work out that he had a mental health condition:
- He texted his manager saying “I’m barely able to talk about anything or see people without crumbling”.
- He said he had been signed off and needed counselling.
- He emailed her saying “I’m starting to get to a point of coping and being able to control/suppress the outward emotional stuff. It’s really hard and I will heal but I’m not fully there”.
- He texted saying “I’m bordering on a fuckin breakdown myself and I’m worried about work“.
- He phoned saying he was on the brink and suffering from panic attacks.
- His sicknotes gave reasons for absence including”E200 anxiety disorder” and “EU 41z anxiety disorder”
But the EAT thought all of that wasn’t good enough to be a red flag. He had also said “I promise I’ll be back as soon as I can.” and had only been signed off work for a week. A disability is an illness that is likely to last a year or longer and seriously effects a person’s day-to-day life. The EAT thought that these messages didn’t suggest any of that.
So the EAT had no option but to find that the employer didn’t have knowledge of the disability.
Conclusions
Mr Seccombe eventually lost his case because the EAT upheld the judgment that he was not disabled according to the definition in the Equality Act. But the interesting point is that it said that even if he had shown he was disabled, then the employer did not know about the disability, or have enough red flags to be deemed to know.
This judgement is reassuring to employers, as it confirms that the Employment Tribunal will look objectively at whether the employer knew, or ought to have known that the employee was disabled. On the strength of this case, the bar may be set quite high for the employee. Yes, employees should tell employers about their medical condition in order to get maximum legal protection from disability discrimination.
Still, employers should ask questions about an employee’s absences at work before considering a dismissal. A good way to do this is through regular health questionnaires. An employer should follow up on ‘red flags’.
Case report: Seccombe v Reed
By Arfa Asif
Image used under CC courtesy of Nina H