The Employment Appeals Tribunal (EAT) has delivered a new judgment setting out what prior knowledge of a disability an employer should have if they are to be held liable for discrimination. Charles Price explains.

Under the Disability Discrimination Act (DDA) 1995, the definition of a disability is as follows:

“A person has a disability for the purposes of this act if he has a physical or mental impairment which has a substantial and long-term effect on his ability to carry out normal day-to-day activities”.

The definition of each element of this has posed many questions to pencil-pushing lawyers. Disability discrimination law in general is incredibly complex and has kept lawyers busy interpreting its machinations for endless hours. For this reason, it is always important to consult a solicitor if you have what you think is a disability case looming. One of those new interpretations of the act which has been delivered in a judgment in the last couple of weeks involves a frequently used defence by employers; namely, ‘the lack of knowledge defence’.

In order to discriminate, the employer must know that the employee is disabled. Traditionally, if, for example, a disabled person was dismissed for long-term absence, and the absence had been caused by a medical condition that amounted to a disability (whether or not the employer knew this), then this element of the claim would have been made out. This was the position for many years, but was overruled by the House of Lords in the case of Lewisham v Malcolm.

The position following Malcolm is that the physical or mental condition that constitutes the disability itself must play a part in the decision-making process of the employer. Therefore, if the physical or mental condition that constitutes the disability has played no part in the decision of the alleged discriminator to treat the disabled person in the way complained of, the alleged discriminator’s reason for that treatment cannot, for the purposes of the DDA, be deemed to be discrimination.

Reasonable adjustments

The type of cases which will often see ‘the lack of knowledge defence’ will be in response to accusations that an employer did not make reasonable adjustments or failed to make reasonable adjustments when not offering a job.

In Eastern & Coastal Kent PCT v Grey, the EAT has held that this requires each, not merely one, of the following criteria to be satisfied, namely that the employer:

• does not know that the disabled person has a disability




• does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled




• could not reasonably be expected to know that the disabled person had a disability




• could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

So it follows that if an employer employed a postman with a wooden leg and that put him at a substantial disadvantage, it is likely that a tribunal would deem the employer had knowledge unless the wooden leg was hidden and there was no reason for an employer to suspect that the employee had such a leg.

Employers should be wary that indications of a disability can be deemed as giving the employer ‘constructive knowledge’ of a disability. For example, a lady with a psychiatric condition who applied for a disabled person’s tax credit from the Inland Revenue and presented the application form to her manager, who passed it on to the DWP’s HR department, had done enough to inform the employer of her disability.

Joined-up approach

This presents many problems for large disjointed companies or local authorities and demands a ‘joined-up’ approach to sickness alerting and administration. Workers in these areas must be trained that if there is an indication of an employee potentially being disabled HR and management should be informed.

There is a more pressing urgency for this when one considers that over recent years the definition of what qualifies as a disability has been broadened considerably. For example, a mental impairment does not need to be a clinically well-recognised illness any more. The DDA 1995 originally provided that a mental illness would only amount to a mental impairment if it was a clinically well-recognised illness. However, this requirement has been removed by section 18 of the DDA 2005, with effect from 5 December 2005.

To conclude, HR professionals would be well advised that managers and staff dealing with anything to do with illness processing should keep each other alerted of employees with a potential disability and should be trained in the definition of what exactly could amount to a disability under the act. The new law makes it easier for an employer in that it seems that ‘a whiff’ of an illness is not enough to satisfy the knowledge test but with unlimited awards in this area there is no room for complacency.

Charles Price is a barrister at No 5 Chambers