This page discusses how far it can be a defence under the Equality Act for an employer or service provider etc to argue they did not know of the disability. It deals with express provisions on this in the Equality Act,. It also deals with the point that what adjustments are reasonable may be less if the employer did not have advance notice.
Lack of knowledge defences
- On a claim of discrimination arising from disability, the employer or service provider has a defence if it:
- did not know of the disability, and
- could not reasonably have been expected to know of the disability.
- In the case of employers, the same defence applies to the reasonable adjustment duty. The employer also has a defence to this duty if it did not know (and could not reasonably have been expected to know) of the substantial disadvantage.
- As regards service providers and others subject to the ‘anticipatory’ reasonable adjustment duty, the role of knowledge is unclear but it may be relevant. See separate page Reasonable adjustments by service providers>Knowledge of disability.
- A company will normally be treated as knowing anything which an employee or agent knows (in that capacity).
- Codes of Practice say that an employer or service provider must do all it can reasonably be expected to do to find out whether the employee etc has a disability.
- Just telling occupational health, or giving information in answer to a pre-employment health questionnaire, will not normally mean the employer is expected to know it.
Other ways knowledge can be relevant
- Letting an employer (or perhaps a service provider) know in advance of a stammer and the need for adjustments can increase the likelihood that it will be reasonable to make the adjustment.
- Whether indirect discrimination requires knowledge of the disability is not clear.
Another page you may want to look at is Recruitment: Should I tell the employer I stammer?
The two ‘lack of knowledge’ defences
The two types of claim for which there is an express ‘lack of knowledge’ defence are
These are dealt with in turn below. The five sub-headings which follow are common to both defences:
- Knowledge of any employee or agent will normally count
- An exception?: Knowledge of occupational health practitioner
- What if employer or service provider did not actually know? – taking reasonable steps to find out
- Examples on employment
- Example on provision of services
There is no express defence for service providers and others as regards the ‘anticipatory’ reasonable adjustment duty. Here the role of knowledge is unclear, but knowledge may be relevant. This is dealt with on a separate page: Reasonable adjustments by service providers>Knowledge of disability.
1. Discrimination arising from disability
Knowledge of disability
As regards ‘discrimination arising from disability’ (s.15), the employer or service provider etc has a defence if it shows that it did not know, and could not reasonably have been expected to know, that the individual had the disability (s.15(2) EqA).
A teetotal customer with a stammer was initially refused a coffee at a pub, because staff though he was drunk. His slurring was due to a stammer. The pub would have a defence to ‘discrimination arising from disability’ if it shows that it did not know, and could not reasonably have been expected to know, that he had the disability. More: Being mistaken for drunk.
However if the pub knew or could reasonably have been expected to know of the stammer, it would not be a defence that they did not know the slurred speech was caused by the stammer. See Knowledge of causal link with disability under s.15 EqA>Examples, which deals with a specific discussion of slurred speech in the Grosset case.
However on a claim under s.15 the employer or service provider etc need not know of the causal link between the disability (eg stammer) and the reason for the unfavourable treatment – provided the employer etc knew (or could reasonably have been expected to know) of the disability. This was decided by the Court of Appeal in Grosset. See Knowledge of causal link with disability under s.15 EqA.
Example: An employee is dismissed for underperformance or for misconduct, and (unknown to the employer) that had a causal link with the disability. The employer can still be liable under s.15 if the employer knew or should have known of the disability.
In contrast, on a claim for reasonable adjustments in employment (see next heading), the employer does effectively have a defence if it did not know and could not reasonably be expected to know of the causal link between the disability and the substantial disadvantage. This is because the employer has a defence if it could not reasonably be expected to know that the claimant was likely to be placed at the substantial disadvantage.
2. Reasonable adjustment duty on employers
An employer’s obligation to make a reasonable adjustment does not apply if it does not know and could not reasonably be expected to know that –
- the person has a disability; and
- is likely to be placed at the relevant substantial disadvantage
- (EqA Sch 8 para 20, as amended by SI 2011/1060, article 6).
‘Substantial’ means just ‘more than minor or trivial’. The requirement to know of the disadvantage only applies to the reasonable adjustment duty, not to the discrimination arising from disability (above).
Does this mean that to get protection a job applicant needs to tells the employer about the stammer? Not necessarily, but see Recruitment: Should I tell the employer I stammer?
In the case of an applicant or potential applicant, the employer also has a defence if it did not know and could not reasonably be expected to know that an interested disabled person is or may be an applicant for the relevant work.
There is no similar defence to the reasonable adjustment duty for service providers, education providers etc.
Knowledge of any employee or agent will normally count
It seems that a company or other organisation will generally be taken to know something that any of its employees or agents knows.
“If an employer’s agent or employee (such as an occupational health adviser, a HR officer or a recruitment agent) knows, in that capacity, of a worker’s or applicant’s or potential applicant’s disability, the employer will not usually be able to claim that they do not know of the disability and that they therefore have no obligation to make a reasonable adjustment. Employers therefore need to ensure that where information about disabled people may come through different channels, there is a means – suitably confidential and subject to the disabled person’s consent – for bringing that information together to make it easier for the employer to fulfil their duties under the Act.”
Employment Code para 6.21. See similarly para 5.17-19 of Employment Code, para 6.19 of Services Code, and para 6.17 of FHE Technical guidance. (However on OH practitioners see below.)
How might this apply in practice?
An employee applies for a promotion. His line manager knows he has a stammer, but the HR staff managing the selection process do not. It is likely that the employer will be treated as knowing about the stammer.
(An Employment Tribunal decision to the contrary in S v Translink is probably wrong. At least it seems to be inconsistent with the Employment Code, which was not considered.)
The Employment Code says the employee etc needs to have the knowledge in his or her capacity as such. Presumably this means that if an employee acquires knowledge from family or friends outside work, that would not in itself count. How about on social media?
However outside of the ‘lack of knowledge’ defence, in a claim for discrimination arising from disability an individual decision-maker’s knowledge of the “something” arising from the disability – ie the alleged reason for the unfavourable treatment – may be decisive: Millar case at Discrimination arising from disability>”Because of…”: decision-maker’s knowledge of alleged reason.
What if the employer or service provider did not actually know? – taking reasonable steps to find out
Even if the employer or service provider etc did not know of the disability (or of the substantial effect in the case of reasonable adjustments), the defence does not apply if the employer etc could reasonably have been expected to know of the disability. This is often called constructive knowledge.
The statutory Codes of Practice say that an employer or service provider must do all it can reasonably be expected to do to find out whether the employee has a disability and – where relevant – is likely to be placed at a substantial disadvantage (Employment Code of Practice para 5.15 and 6.19, Services Code of Practice para 6.16, FHE Technical guidance para 6.15). If the employer etc does not, it may be found to have constructive knowledge.
The Codes of Practice also give some examples of what it would be reasonable for an employer or service provider to do.
People who stammer often do not see themselves as ‘disabled’. The Employment Code says employers should take this into account:
“…Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’.”
Employment Code para 6.21. This point is particularly relevant for stammering.
A case where the employment tribunal found the employer did not have constructive knowledge of a stammer, because there was nothing to put the employer on notice to investigate further:
C v Spencer & Arlington, Employment tribunal, 2019
The employment tribunal rejected a claim that an employee had a stammer which (he said) started in adulthood. In any event, held the tribunal, even if he had a stammer the employer could not be reasonably be expected to know of it.
The tribunal said: “It was argued that the claimant’s behaviour in meetings ought to have placed the [employer] on notice of his disability. However, we reject any suggestion that the claimant shouting or behaving in a manner perceived as angry should have resulted in a referral to Occupational Health or the [employer] investigating matters further. On the contrary, we accept that the [employer] was entitled to suggest that the claimant seek help with anger management and leave the matter there. The claimant failed on every opportunity to bring to the [employer]’s attention any difficulty he had speaking or that he was placed at any disadvantage as a result.”
Note: even if the employer had failed to take reasonable steps to investigate, there would be the question of whether the claimant would have been willing to reveal his disability if the employer had taken steps: below Constructive knowledge: If claimant not willing to reveal disability.
Constructive knowledge: If claimant not willing to reveal disability
Some people who stammer may be reluctant to talk about it, particularly those with a covert stammer where listeners may not be able to hear the stammer. What if the employer etc does not actually know about the stammer or other disability, and a tribunal decides the claimant would not have revealed the disability even if the employer etc had taken reasonable steps to find out about it? Here the tribunal is likely to decide that the employer could not reasonably have been expected to know of the disability. That is so even if the employer did not take reasonable steps to find out about it, because those steps would not have made a difference anyway.
A Ltd v Z (bailii.org), Employment Appeal Tribunal (EAT), 2019
The claimant was dismissed for poor attendance and time-keeping. These resulted from mental and psychiatric impairments. However she gave physical ailments as the reasons for her absences from work, and had not disclosed her mental and psychiatric impairments to the employer.
The EAT confirmed that the employer did not have constructive knowledge of her mental health disabilities. The tribunal found that on the facts, even if the employer had made further enquiries, the claimant would still have suppressed information concerning her mental health problems. She would not have entertained any proposal for an Occupational Health referral or other medical examination that might have exposed her psychiatric history.
An exception: Knowledge of occupational health practitioner
Occupational health (OH) practitioners are generally doctors or nurses, and have a duty of confidentiality. Other than in exceptional circumstances – mainly where required in the public interest (if the worker may be a risk to others) or where ordered by a court – OH need the employee’s or job applicant’s consent before disclosing medical information to managers or HR. This confidentiality is required by professional ethics: Faculty of Occupational Medicine (FOM) ethics guidance 2018; for doctors GMC Confidentiality Guidance 2017 (gmc-uk.org); for nurses the NMC guidance (nmc.org.uk). Normally it is also required by the law of confidentiality.
Under the Equality Act it seems the employer is not treated as knowing confidential information given to an OH practitioner except so far as the job applicant or employee has consented to its disclosure – and perhaps except in exceptional cases where no consent is required. The Employment Code quoted above is not clear but recognises the importance of confidentiality and consent. In any event the Employment Code is not an authoritative statement of the law. Most importantly, there is Court of Appeal authority in the form of the Hartman case, albeit not directly on the Equality Act: see below OH knowledge: Technical points.
It is helpful that one can have a confidential discussion with an OH practitioner. On the other hand, a disabled person should be aware that just telling OH does not mean the employer knows about it. For example, just because you tell OH about the stammer and how it is giving you certain problems does not mean the employer is taken to know about it for the purposes of the Equality Act, nor that the information will be passed to the employer. Similarly writing something in a pre-employment health questionnaire does not mean the employer knows about it, as the answers will probably be confidential to OH (the claimant in Q v L below misunderstood this).
You can however ask OH to put particular information in their report, so that OH has your permission to disclose it. If you see information you want managers or HR to know isn’t in the OH report, you can of course tell managers or HR anyway.
OH reports will often recommend particular adjustments for the employer to make if practicable (you can discuss with OH what adjustments would help). OH might make recommendations without telling the employer what the disability is. However it is likely to be helpful both practically and legally for OH to expressly mention the stammer in their report (see next paragraph), and you may well be happy for it to do so. Hopefully the report will also say OH thinks the stammer is likely to be a disability within the Equality Act.
Some people with a covert stammer might perhaps not want OH to mention the stammer, but to just recommend any adjustments. However in an Equality Act claim that may give the employer greater scope to dispute whether it had sufficient knowledge of the disability and its effects. Also there may be less chance in practice of appropriate adjustments being considered and made – eg if the employer sees the recommended adjustments as unacceptable but alternatives might be considered, or if a further need for adjustments arises in future.
OH knowledge : Technical points
Some employers have taken the EAT decision in London Borough of Hammersmith & Fulham v. Farnsworth (bailii.org), 1999, to mean a job applicant must be taken to have consented to her answers to a health questionnaire being passed to the personnel department. That conclusion is strongly disputed in Diana Kloss’s book Occupational Health Law (6ed, 2020), at section 8.23. The book cites Hartman v South Essex Mental Health NHS Trust (bailii.org), 2005, a personal injury case in which the Court of Appeal rejected an argument that vulnerability to stress disclosed to occupational health (expressly in confidence) fixed the employer with knowledge.
Also a more recent Equality Act case where the EAT treated the employer as not knowing information given to OH where the job applicant had not given written consent to disclosure is Q v L (bailii.org), 2019. It is not clear why the court thought consent must be written.
Information in a job applicant’s health questionnaire might perhaps be attributed to the employer in the light of the Farnsworth case if job applicants give consent to the health questionnaire being sent to the personnel department. However that practice is deplored by most OH professionals (see 8.23 in Diana Kloss’s book cited above), and may well be a breach of data protection law under the GDPR.
The question is whether the employer knew or should have known of the facts of the disability, not whether on those facts there was legally a ‘disability’ (see Gallop below). So an employer can still have the relevant knowledge despite being told, by Occupational Health (OH) or another advisor, that there is no ‘disability’ within the Equality Act.
Gallop v Newport City Council (bailii.org), Court of Appeal, 2013
An employee had depression and claimed for failure to make reasonable adjustments. The employer was told on several occasions by its occupational health (OH) advisor, without reasons being given, that the employee did not have a disability within the Disability Discrimination Act 1995, the legislation then in force. The Employment Appeal Tribunal held this meant the employer did not have the required knowledge of the disability, so the claim for reasonable adjustments failed.
The Court of Appeal disagreed. The question was whether the employer had actual or constructive knowledge of the relevant facts, eg was there a physical or mental impairment, was there a substantial long-term adverse effect on ability to carry out normal day-to-day activities, and was there a substantial disadvantage so as to trigger the reasonable adjustment duty. The unreasoned OH opinion was worthless. The Court of Appeal gave guidance at para 41 to 45 on how OH advice might more usefully be sought and given.
In Donelien (below) the Court of Appeal clarified that Gallop is very far from saying that an employer may not attach great weight to the informed and reasoned opinion of an occupational health consultant. However the OH report should not be followed uncritically. In Donelien the employer had not relied just on the OH opinion:
Donelien v Liberata (bailii.org), Court of Appeal, 2018
This was a claim for failure to make reasonable adjustments. The employment tribunal held the claimant did have a disability, but her claim failed because the employer could not reasonably be expected to know this. The Court of Appeal upheld this decision; the tribunal was entitled to find that the employer “did all they could reasonably be expected to have done to find out about the nature of the health problem that the Claimant was experiencing”.
An OH opinion suggested that the claimant did not have a disability, but OH failed to answer all the questions the employer asked, even when the employer requested clarification. However the employer did not treat the OH advice as conclusive. The OH advice chimed with the employer’s own experience and impressions, and with two letters from the claimant’s GP. Also the employer had its own return to work meetings and discussions with the claimant. This was clearly not a “rubber stamp” case. The employer was presented with a good deal of not very clear information, and getting a good understanding of it was not helped by the claimant’s rather uncooperative and confrontational stance.
The Court of Appeal commented there was some concern that Gallop raised a serious question about whether employers were entitled to attach weight to advice from an occupational health consultant on whether an employee had a disability. The Court of Appeal explained that Gallop had said the employer could not rely simply on its unquestioning adoption of OH’s unreasoned opinion, and could not simply rubber-stamp the adviser’s opinion. However that was “very far from saying that an employer may not attach great weight to the informed and reasoned opinion of an occupational health consultant”. Also the lay members of the EAT in the present case emphasised “that in general great respect must be shown to the views of an Occupational Health doctor”, though such views should not be followed uncritically.
A further EAT decision is Kelly v Royal Mail (bailii.org), 2019, summarised at Knowledge of disability: reasoned OH report (atworkpartnership.co.uk).
A case on stammering where the employer’s ‘lack of knowledge’ defence failed:
Y v Calderdale Council (2003), Employment Tribunal
A job applicant had a severe stammer. He stated on the application form that he was disabled by reason of “stammering”. However, he gave no indication of the severity of the stammer and left blank a question on whether he had any special requirements. He succeeded in a claim for breach of the duty to make reasonable adjustments. The tribunal found that by the time the interviewers came to ask the interview questions, it was obvious and certain to both of them that the applicant was at a substantial disadvantage.
Note: this was a pre-Equality Act case and that issue might not even arise now. It seems that knowledge of the job applicant being at a substantial disadvantage may well not be required under the Equality Act, though knowledge of the disability might be.
A claim on stammering where the employer’s ‘lack of knowledge’ defence succeeded:
S v Translink (2008), Employment Tribunal
The tribunal found it was clear from the evidence and the notes of the interviewer that the claimant’s speech impediment was notable in the interview. However the tribunal found credible the interviewer’s explanation for not commenting on it. The interviewer had no way of knowing whether the stammer was as a result of nerves or a ‘disability’ – as no information had been provided to him with regard to that issue. The employer could not reasonably be expected to know the claimant had a disability likely to put him at a substantial disadvantage in the assessment process, and accordingly had a defence to the reasonable adjustment duty.
Comment: It may well be argued in a future case that an employer in these circumstances should take reasonable steps to find out if there was a disability (see above What if the employer or service provider did not actually know? – taking reasonable steps to find out).
The employee in this case was already employed by Translink. His line manager knew of the stammer, but those dealing with the selection process did not. The tribunal held that the line manager’s knowledge could not be imputed to the employer.
Comment: That is probably wrong. It seems inconsistent with the Employment Code, which was not considered. See above Knowledge of any employee or agent will normally count.
An example of an Employment Appeal Tribunal decision on a rare disorder where the employer could not have been expected to know unless actually told:
Ridout v TC Group plc  EAT
A job applicant disclosed she had photo-sensitive epilepsy controlled by medication. Her claim failed because the employers could not be expected to know that the lighting arrangements at the interview would disadvantage her. The applicant had a very rare form of epilepsy and the tribunal was entitled to conclude that no reasonable employer could be expected to know, without being told in terms by the applicant, that the arrangements which were made for the interview might disadvantage her.
From the Services Code, paragraph 6.18
Where there is no ongoing relationship, a service provider will nevertheless need to consider whether there is a disability and, as a result, the particular treatment will amount to unfavourable treatment because of something arising in consequence of their disability. This may involve something as simple as giving a disabled person the opportunity to disclose their disability by asking them if there is any reason for their behaving in a particular way.
Example: In a busy café with only counter service, one of the staff notices a customer is sitting at a table without ordering. It is the café’s policy to ask people who are taking up tables without having ordered anything to leave. The staff member goes up to the customer’s table and asks if he needs any help. The customer discloses that he has diabetes and his legs are hurting him, meaning that it would be difficult for him to go up to the counter and order food and drink himself.
That is an example on discrimination arising from disability. The role of knowledge as regards the reasonable adjustment duty on service providers is not clear – see separate page Services: Reasonable adjustments – Knowledge of disability.
Reasonableness of adjustments by employer – relevance of advance knowledge
This section is about the reasonable adjustment duty on employers, assuming the ‘lack of knowledge’ defence (above) does not apply. It discusses how letting an employer (or perhaps indeed a service provider) know in advance of a stammer and the need for adjustments can increase the likelihood that it will be reasonable to make the adjustments.
Thus an employer may have greater obligations under the reasonable adjustment duty if it has sufficient notice to consider the adjustments and to make appropriate preparations in advance of the interview, assessment etc. As well as having advance notice of the stammer, it may help that the employer is told either what adjustments are sought (so far as possible) or enough about the disability to understand what adjustments may be required.
Quite apart from one’s legal rights, letting the employer or other business know in advance makes it more likely that adjustments will happen in practice.
In S v Translink the tribunal held that it would not have been reasonable to arrange a second interviewer for the claimant given there was no advance notice. (In that case, this ‘reasonableness’ point was in addition to the ‘lack of knowledge’ defence which was also held to apply).
However, in Y v Calderdale Council the tribunal seemed willing to countenance very significant adjustments, even though it was only at the interview itself that the employer became aware of the extent of the problem. The employer had been informed in the application form that the applicant had a stammer, but not of its severity.
The employer probably ought to be proactive (see Reasonable adjustment rules>Onus to comply is on employer). However, if the employer does not raise the issue, a person who stammers who would like adjustments could perhaps raise it when he has been sent the invitation to interview.
The relevance of an employer’s knowledge in deciding what adjustments are reasonable is acknowledged in the Employment Code of Practice:
The practical effects of an employer’s duties may be different if a person whom the employer previously did not know to be disabled (and it would not be reasonable to expect them to have known this) arrives for interview and is substantially disadvantaged because of the arrangements. The employer will be under a duty to make a reasonable adjustment from the time that they first learn of the disability and the disadvantage. However, the extent of the duty is less than might have been the case if they had known (or ought to have known) in advance about the disability and its effects.
Employment Code, para 16.60.
Reasonable adjustments by service providers – is knowledge required?
Unlike reasonable adjustments by employers, there is no explicit defence for not knowing about the disability in the case of the reasonable adjustment duty on service providers and bodies exercising public functions. The position is unclear. See Reasonable adjustments by service providers>Knowledge of disability.
Indirect discrimination – is knowledge required?
It is not clear how far a company may be liable for indirect discrimination if they did not know of the disability. Arguments for no knowledge of the disability being required are:
- The Equality Act contains no ‘lack of knowledge’ defence for indirect discrimination.
- In parliamentary debates on the Equality Act, the Solicitor General Vera Baird commented that “[indirect discrimination], of course, does not require knowledge” of the disability on the part of the employer, service provider etc (col 108, Public Bill Cttee, 9th June (parliament.uk)).
- It might be argued that the provision, criterion or practice should not have been introduced in the first place if it was not objectively justified.
On the other hand in McClintock v Department of Constitutional Affairs (link to bailii.org) , a case on religious discrimination, the Employment Appeal Tribunal (Elias P, at para 46) indicated that knowledge could be relevant. “It would be absurd, for example, if an employer could be liable for religious discrimination for refusing an employee time off on a Friday if the employee had not even made it clear that the reason he made this request was for religious purposes.”