Employment Law: Disability - A Question of Evidence

An employer may find itself in difficulty, in deciding whether an employee is disabled and, therefore, protected by the Disability Discrimination Act.

Evidence may be elusive or symptoms of disability may not have lasted a year.

In a recent case, the Employment Appeal Tribunal (EAT) decided that if an employer has reasonably attempted to establish what particular medical problems must be identified, in order to establish whether or not an employee is disabled, but receives inadequate or no response from the employee, it should not be penalised if it subsequently transpires that the employee was indeed disabled.

Here the employee suffered post-traumatic stress disorder, with months of poor attendance, lateness and failure to co-operate with the employer’s efforts to obtain occupational health advice. He was subsequently dismissed.

He was found to be disabled but the EAT decided that the Employment Tribunal was correct in dismissing his discrimination claim, because he had never provided proper evidence of poor health, despite the employer’s many attempts to obtain it from him.

The EAT noted it would have been a different decision if the employer had not been as proactive. They added: “It is clearly insufficient for an employer, put on notice that a claimant may be suffering from some illness, simply to sit back and do nothing”. The employer’s proactive approach in this case saved it from censure.

In another case, a prospective employee had been treated for mental health problems, which had lasted for approximately eight months. Her prospective employer offered her employment but withdrew the offer, once an occupational health report deemed her unfit for work.

Unfortunately, her illness recurred and by the date of the hearing she was considered to be disabled. The prospective employer said she had not been disabled at the time of the allegedly discriminatory act (of withdrawing its offer of employment), because her illness had not, at that time, lasted long enough.

The EAT had to decide whether the Tribunal could ignore the relapse that occurred after the alleged act of discrimination. They said the correct question for the Tribunal to ask was: “What, at the time of the discriminatory act, was the likelihood of her condition re-occurring, given what was known at the date of the hearing?”

Such a decision might have left employers in despair but for current guidance (which did not apply in the case concerned), suggesting that Tribunals should ignore later events when judging an employer retrospectively.