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Does "discrimination" require knowledge of the disability?

There are conflicting cases on whether an employer can be taken as treating a person less favourably "for a reason which relates to [his] disability" if the employer does not know of the disability, and perhaps even could not reasonably be expected to know of it.

Ignorance treated as a defence

O'Neill v Symm & Co Ltd [1998] ICR 481
The applicant had taken substantial time off work for illness and was dismissed. The employers did not know that she actually had ME or chronic fatigue syndrome. The EAT held that the Employment Tribunal was entitled to dismiss her claim. She was not dismissed "for a reason" which related to her disability where she was dismissed because of absence from work but the employers were not aware of the disability, or its material features as set out in Schedule 1 of the DDA.

Ignorance treated as no defence (apart from on justification)

Kenrick v HJ Heinz Ltd [2000] IRLR 144 (December, 1999)
The EAT doubted that O'Neill was correct. The relevant wording in the DDA "may include a reason deriving from how the disability manifests itself even where there is no knowledge of the disability as such. This, we think, opens no floodgates but it does require employers to pause to consider whether the reason for some dismissal that they have in mind might relate to disability and, if it might, to reflect on the Act and the Code before dismissing. There is, in our judgment, no need to imply into the statute a requirement not expressly present, namely that the employer should know of the disability as such or as to whether its material features fell within or without Schedule 1 of the 1995 Act...This is not to say, though, that such knowledge or its absence may not be highly material to justifiability..."
In the Heinz case itself, though, the employment tribunal had in any event found that the employer's doctor knew that the applicant was suffering from symptoms falling within DDA Sched. 1.

Farnsworth v London Borough of Hammersmith and Fulham (June 2000)
The EAT considered that O'Neill could no longer be correct as it was inconsistent with the Court of Appeal decision in Clark v Novacold. The judgment in Clark rendered knowledge of the disability irrelevant in deciding whether the person had been treated less favourably for a reason related to his or her disability.
In any event, the Borough was treated as having actual knowledge of the disability because a doctor who was its agent and one of its "decision making team" had such knowledge.

The EAT also agreed with Heinz rather than O'Neill in Westbridge International Ltd v Barker (June 2000).

Ignorance no defence unless employer has absolutely no reason to consider the condition exists?

Heggison v A & W Bernard (March 2000)
The Scottish EAT said that it had little doubt that in general terms the test is that enunciated in Heinz, in particular where the EAT in Heinz says: "There is nothing in the statutory language that requires that the relationship between the disability and the treatment should be judged subjectively through the eyes of the employer. The correct test is the objective one of whether the relationship exists, not whether the employer knew of it. This requires employers to pause to consider whether the reason for some dismissal that they have in mind might relate to disability and, if it might, to reflect on the Act and the Code of Practice before dismissing. Unless the test is objective, there will be difficulties with credible and honest yet ignorant or obtuse employers who fail to recognise or acknowledge the obvious."
However, the EAT in Heggison continued: "We would recognise that in certain cases the lack of actual knowledge which is rationally based in the sense that the employer would have absolutely no reason to consider that the condition exists, may still be an answer to any charge for discrimination and to that extent the conclusions in O'Neill can be supported. However, as soon as factors exist in any case which puts the employer on his guard, wherever they may be and each case must depend on its own facts, the employer in our opinion must pause and if necessary take steps on his own initiative to determine whether there exists a state of disability which requires to be addressed, whether by section 6 in terms of adjustment or by not dismissing or treating less favourably the victim. In Heinz, such factors were held to exist and equally, in the present case, we are of the view that such are present.

Comment

On a strict reading of the statute, it seems irrelevant whether the employer knows of the disability or indeed has any reason to suspect it.

However, one can understand a tribunal being reluctant to find against an employer if he had no reason to suspect the person was disabled within the DDA.

Where there are factors to put an employer on his guard it seems that the tribunals will be willing to hold that there has been discrimination. For cases, perhaps rare, where there are no such factors, we need to await future cases or legislation clarifying the issue.

The full text of the Heinz, Farnsworth, Westbridge, and Heggison decisions is available on the Employment Appeals Tribunal website.

Hiding the stammer
Employment: The Basic Rules

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