Employer did not believe me when I disclosed my disability

[dc32]

I am wondering whether someone can give answers based on legal principles. Don't feel you have to answer every single on of my questions. The ones at the bottom are actually more relevant, and if they are answered in a certain way then you will find that answers for the first questions are not necessary.

I disclosed my disability to my employer, identifying my condition and specifically referring to it as a disability, who thereafter started asking whether I needed reasonable adjustments, etc. They did not request further documentation from me, e.g. diagnosis, etc. or request that I see a doctor or Occupational Health for a confirmation of my condition, but I did provide the diagnosis to them when it was available. From their behaviour at the time, I was led to believe that my employer had accepted my disclosure and that they did not require any further information.

However, in the process of the employment tribunal, which is ongoing, they claimed that they had not believed my disclosure and did not consider me a disabled person, even after I had provided proof of my diagnosis, and that the fact that they did not believe me meant that they were not obligated to provide reasonable adjustments or considered to have any knowledge of my disability. They have since conceded disability.

Does their claim that they didn't believe my disability disclosure at first mean they cannot be held responsible for not having provided me with the reasonable adjustments I requested, or for the fact that they discriminated against me because of the disability by dismissing me a few weeks after the disclosure (among other things)?

Could I have been expected to provide more information regarding my disability, even though it had not been requested? Can the fact that I did not provide them with more information than I did to support my disability disclosure be used against me?

Is it not true that they should have made all necessary inquiries once I had disclosed my disability, and that the disclosure, in these circumstances, should have been enough for them to be aware, from that point in time, that I was disabled?

Can they claim they had no knowledge of the disability after I disclosed it, just because they decided not to believe me?

Does the fact that they did not inform me at the time that my disclosure was not believed and did not seek further information or professional advice about my disability make any difference in my and their legal obligations in this regard?

Next is a question relating to a time before my official disclosure as described above. Can the employer be said to have known about my disability from the point at which one of my colleagues admitted (in his witness statement) to suspecting that I had the condition with which I was later diagnosed and that I identified as my disability? That colleague had made derogatory comments about me with reference to particular aspects of my condition. Can that be considered harassment on the basis of my disability, even though my actual disability disclosure was made after that? The condition is of a life-long nature, so there is no issue of whether I had it even before diagnosis.

I am finding the words "could reasonably have been expected to know" very confusing mostly because if the employer had referred me to occupational health or even a GP at any point, my condition would have been diagnosed and identified as a disability that much sooner. They did not do so, even though they perhaps should have done.

Even before my colleague had identified my condition as above and before the disclosure of my specific disability, I had disclosed to my line manager a related condition which is a symptom of the disability, and which was causing me difficulty in my work, which my colleagues and line manager had already noticed. I informed my line manager at the time that this related condition had been diagnosed (i.e. my disability condition had been misdiagnosed as another related condition) in the past (over one year previously) and that it had caused me difficulty with my work back then as well. I did not mention the word "disability" at that time, because I, as most people, did not have intimate knowledge of the Equality Act back then.

Was that previous disclosure enough to give my employer constructive knowledge of my disability or constructive knowledge that I may be disabled and that further investigation should have been undertaken?

If the employer should have made further inquiries but didn't, what is the point in time at which they could be considered to have constructive knowledge of my disability, at the point that they failed to make further inquiries or some other time?

After the point at which they could be considered to have constructive knowledge of the disability, can the employer be held accountable for any discriminatory or harassing acts perpetrated against me by my colleagues because of aspects of my disability, and for any failures on the employer's part to provide reasonable adjustments when I requested support with my work?*

I don't want an absolute prediction of how the employment tribunal will decide my case (well, actually, that would be nice), but I would just like some kind of feedback as to what I can possibly expect. If my questions fall into grey areas of the law, please tell me this as well, so I will know how to better make my arguments in the tribunal (I am representing myself).

Thanks for reading until the end and sorry this is so long.

[ULA]

Hi dc32 can I just ask a few questions so that I can help with a response:

What is your claim for?
What stage are you at in the employment (ET) process - that would be really useful to know?*
When you say they conceded disability when did this happen in the process?
AS a result are they now accepting you notified them of your disability?
How were you diagnosed with the disability?
How long after you were diagnosed did you inform your employer?

Many thanks
*

[dc32]

Hi dc32 can I just ask a few questions so that I can help with a response:

!. What is your claim for?
2. What stage are you at in the employment (ET) process - that would be really useful to know?
3. When you say they conceded disability when did this happen in the process?
4. AS a result are they now accepting you notified them of your disability?
5. How were you diagnosed with the disability?
6. How long after you were diagnosed did you inform your employer?

Many thanks

Thank for your response. Here are the answers to your questions.

1. My claim is for discrimination, harassment, and failure to provide reasonable adjustments, among other things.

2* The ET process is coming up to the main hearing, but we haven't exchanged witness statements, etc., yet.

3. They finally conceded disability after a long drawn out process of consulting a second expert, etc. At first, they were even contesting the original diagnosis but with no basis for doing so.

4. They said at first (before they conceded disability) that they had no obligation to provide reasonable adjustments because they didn't believe my disclosure. They still say they could not possibly have known about the disability, so I guess they are still using the claim that they didn't believe me when I notified them so that meant they didn't know. For the sake of answering my questions, let's just assume that is the case.

5. I was diagnosed with the disability in the usual way I guess, by seeing a doctor specialising in the condition and receiving a diagnosis. I might have misunderstood your question.

6. I informed the employer of the condition I actually have before the final correct diagnosis because by then it had been pointed out to me by someone I knew that might be what I had, and also my colleague had suggested the same condition to me, as in the ninth paragraph of my previous post.

I had previously been misdiagnosed with another related condition, which I disclosed to the employer when it had become an issue in my work, as I described in the eleventh paragraph of my previous post.

I want to know whether they could reasonably have been expected to know from that point on about the disability, or at least suspect that a disability might be a factor. It turns out that even before that, several of my colleagues were making comments about issues related to my disability behind my back, so it's not as though they didn't know anything. I guess that making fun of me was more important to them than handling my disclosure in a professional manner.

I want to know how strong my argument is for saying they should have known about my disability at three points in time: (1) when I first disclosed the related condition and described the difficulties I was having, given that my colleagues had already commented on those difficulties by that time, (2) when my colleague admitted to suspecting I had the condition (before I had been diagnosed) and was harassing me because of his perception that I had the condition (his harassment relates to specific symptoms of the disability), and (3) when I informed them of my suspected disability condition that was later correctly diagnosed.

I hope I have clarified what I am asking. I would really appreciate anyone's opinion on the above. There are so many different ET cases covering aspects of when an employer should have known about a disability, but I find that they're not all that consistent, so it's pretty confusing.

Thanks.


*

[ULA]

Thank you for the response to my answers.

Sorry just for clarification did they conceded disability before or after you put in an ET claim? Just thinking that if is was the former why did they not then start a discussion with you about making reasonable adjustments?

Just on the legal side of things, a duty to make reasonable adjustments in respect of a disabled employee will not arise if the employer does not know, and could not reasonably be expected to know:

1. that the individual is disabled, or

2. that they are likely to be placed at a substantial disadvantage because of that disability

Quite often it is clear that someone is disabled or has become disabled under the terms of the Equality Act, however in many cases, it is not so clear and maybe your situation falls into this category (until they conceded the point). Employers are not medical professionals, they are not expected to be and it will often not be clear that an employee is suffering from an underlying condition, or that that condition constitutes a disability for the purposes of the Equality Act 2010. However, if an employer could ‘reasonably be expected to know' about the disability (and about the substantial disadvantage the employee is placed under), even if in practice they did not actually know, then the duty to make reasonable adjustments will still arise.

Employers need to be careful, therefore, to keep an open mind as to whether an individual is disabled, and ensure they make all reasonable enquiries. Therefore, in your case given the scenarios of 1,2 and 3 then potentially if 1 came before 3 then in my opinion your employer should have started to ask questions at this stage or at least consider asking you to have an appointment with OH or a GP. I am not ignoring 2 but did that come before 1 and at any time did your colleagues express these concerns about your health to a manager?

My advice to any employer dealing with this type of situation is that if an employee is telling you that they think they may be disabled, or they are having difficulties completing their work tasks because of some condition or if the employer has some suspicion an employee might have a disability but the employee has not said anything, is to always ask further questions. They should not just rely on what the employee is, or is not, telling them.

I think the reason you are finding inconsistency in Employment Tribunal (ET) or Employment Appeal Tribunal (EAT) rulings is that each case is judged on the merits of that individual case and its own set of circumstances, so rulings applied to one set of presented arguments may not hold for another case with a different set of arguments.

I presume you have come across these cases as you have been undertaking your research but if not they may help.

Department of Work and Pensions v Hall, where the (EAT) held that the employer should have known about the disability.

Cox v Essex County Fire and Rescue Service, where the ET rules and then the EAT agreed, that the employer did not have actual or constructive knowledge of the disability. This case may help in you understanding where your employer may argue their points.

Hope this helps and if you have any more questions just pop back to this thread.

[dc32]

Sorry just for clarification did they conceded disability before or after you put in an ET claim? Just thinking that if is was the former why did they not then start a discussion with you about making reasonable adjustments?

Here it is in chronological order. As soon as I had declared my disability during my employment by actually using the word "disability" (scenario 3), they were asking about reasonable adjustments, but not actually following through on them even when they had promised to do so. When the tribunal case was initiated and they submitted the ET3 form, they said that they had not really believed at any point that I had a disability so they had had no responsibility to provide reasonable adjustments, even though they had asked me at the time what adjustments I required and promised to make those adjustments, and did not tell me that they questioned my declaration of disability or even ask me for further medical information, for example. They conceded disability well after the tribunal case was initiated (after they submitted the ET3), but did not make any further statements regarding the implications their concession has on their previous stance. Therefore, I can only assume that they are relying on their claim that they couldn't have known about the disability, in order to explain their failure to provide reasonable adjustments.

Thanks for the suggestions of cases to read. Both of those are quite relevant. It seems that if the employer makes inquiries with OH, they can be considered to have done everything they could, but if they are notified about a health condition which may have a substantial detrimental effect on the ability to undertake day to day activities and they make no further inquires about it, they can be considered to have constructive knowledge, because those inquiries would likely have led them to be fully aware of the disability, if they had made them. Is that a reasonable conclusion to draw from those cases?

Another conclusion I have drawn, from those and various other cases, is that as soon as the conditions for constructive knowledge of the disability are met, the employer is also liable for not having made whatever reasonable adjustments they could and would have made had they initiated an inquiry and had found out about the disability at that time. It doesn't seem to matter so much whether the employee has requested adjustments, because the employer is supposed to ask questions about this as part of the medical inquiry. Is that correct?

I would like to see the original ET judgement of the Hall case, as much of the reasoning is omitted from the EAT determination. Is that available online anywhere?

Thanks again.

[BehindPBS]

http://www.mondaq.com/uk/x/780490/Di...ees+Disability

[ULA]

I believe that since the Hall case is prior to 2017 then you will need to contact Bury St Edmunds County Court and their Employment Tribunal section - the number is 01284 727329 to try and get a full copy of the ET judgement.

My view is that as soon as an employee raises the possibility of having a disability then an employer should start the process of making further enquiries, either that be via the individuals GP or medical specialist via access to medical records or by sending the person to OH. The employer has knowledge that there is the potential for a medical condition that may be be classified as a disability under the Equality Act at the point they are first notified. It is then down to the employer to satisfy themselves that the conditions exists and if so confirmed for them to request information from the medical professionals and the employee of what reasonable adjustments would assist the employee being able to perform their duties.

[dc32]

http://www.mondaq.com/uk/x/780490/Di...ees+Disability

Thanks for this BEHINDPBS. It is very useful information.

Thanks Ula. The information you have provided is extremely helpful. I have previously asked so many people with legal knowledge about this sort of thing, and you are the first one who has given me a straight answer. Other people have said it is up to the judge, which makes me wonder why they went to the trouble of making laws in the first place, if it just ends up being up to one person to decide.

[ULA]

Ultimately it will be up to the ET judge but they should view the case on the merits of the facts and the legal basis of the arguments presented.*

[D_Pappa]

You've got some really good answers already - I just wanted to chime in and wish you good luck first of all!

I don't foresee you having an issue with your condition being a disability for the purposes of employment law, based on what you've posted. If you have medical evidence of this, you're already in a good place. As soon as you told your employer, they lost the 'didn't know / couldn't reasonably have known' part of a defence. If they had more questions, the onus was on them to satisfy themselves by asking you for answers.

The respondent has fouled their own defence by asking you about reasonable adjustments. Why would they offer those, if they didn't think you were disabled? In any case, if they required further clarification, they should have referred you to occupational health, and/or asked for more information from your own GP. The fact that you gave them a diagnosis makes their position even more ridiculous.

To think about why they are being like this, put yourself in their shoes from a legal standpoint: you can only benefit from the protection that the Equality Act 2010 gives you as a disabled person if you are disabled within the meaning given in section 6 of this act. If the respondent asserts that you aren't disabled, and you're unable to prove that you are, this claim is cannot be upheld if your favour. Further, if they assert that they didn't know you were disabled, that is a defence to the failure by them to make reasonable adjustments.

For what it's worth, the respondent's strategy sounds pretty flimsy, as well as morally dubious. But they are probably clutching at the very limited defence they can mount. Otherwise, the only other options they have are to agree with you and/or fail to mount a defence.

They're just trying to make you run uphill.