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 or its consequences?
- On a claim under the reasonable adjustment duty (below), an employer has a defence if:
- it did not know of the disability, and could not reasonably have been expected to know of it, or
- it did not know of the substantial disadvantage and could not reasonably have been expected to know of it.
- On a claim for discrimination arising from disability (below), the employer or service provider etc has a defence if:
- it did not know of the disability, and could not reasonably have been expected to know of it.
- Some points on those two ‘lack of knowledge’ defences:
- For discrimination arising from disability, the employer etc need not have actual or constructive knowledge of the causal link between the disability and the reason for the unfavourable treatment.
- The “could not reasonably have been expected to know” wording means the employer etc must do all it can reasonably be expected to do to find out about any disability (or substantial disadvantage). If the employer etc does not, then it has ‘constructive knowledge’ (below) of what it would have found out had it done so.
- Often a disabled person cannot be sure whether a tribunal would decide an employer has actual or constructive knowledge. The position is clearer if the worker or job applicant actually tells the employer etc about the stammer and of any substantial disadvantage: below Better to tell the employer etc expressly rather than rely on it knowing in some other way. If the employer wants to make further enquiries, I would suggest co-operating: see separate page Employer requiring medical evidence for reasonable adjustment?
- A company is normally treated as knowing anything which an employee or agent knows (in that capacity): below Knowledge of any employee or agent will normally count.
- Just telling occupational health, or a response in a pre-employment health questionnaire, will not normally mean that the knowledge is imputed to the employer.
- For the reasonable adjustment duty, if the employer has actual or constructive knowledge of the disability and disadvantage, it does not matter whether it knew that particular adjustments were reasonable. Therefore the employer is well advised to consult with the worker. Separate page: Reasonable adjustment rules: employment>Consultation.
- Letting an employer (or perhaps a service provider) know in advance of a stammer and of the need for adjustments can increase the likelihood that it will be reasonable to make the adjustment.
- As regards service providers and others subject to the ‘anticipatory’ reasonable adjustment duty, knowledge may be relevant but this is unclear. See separate page Reasonable adjustments by service providers>Knowledge of disability.
- There are some instances – namely direct discrimination and one aspect of discrimination arising from disability – where only an individual employee’s knowledge is relevant (below).
- Whether indirect discrimination (below) requires knowledge of the disability is unclear.
A page which considers some practical implications of the ‘lack of knowledge’ defence when applying for a job 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 six headings which follow are common to both defences:
- Constructive knowledge – taking reasonable steps to find out
- Better to tell the employer etc expressly rather than rely on it knowing in some other way
- Knowledge of any employee or agent will normally count
- An exception: Knowledge of occupational health practitioner
- 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
‘Discrimination arising from disability’ (s.15) is where a person treats a disabled person unfavourably “because of something arising in consequence of” the disability. The employer or service provider etc has a defence if it shows either justification or – the focus of this page – that it did not know, and could not reasonably have been expected to know, that the individual had the disability (s.15(2) EqA).
In a job interview a woman with a covert stammer hides her stammer more or less fully, but uses circumlocutions and limits the content of her answers. This leads the interview panel to mark her down and she doesn’t get the job. She has not told the employers about her stammer. The circumlocutions and limited answers are something arising from her stammer, but the employer may well successfully argue that it has a defence to a claim under s.15 EqA because it did not know and could not reasonably be expected to know of her stammer.
Even if that defence did not apply, the employer would have a defence if it can show justification. There are some actual cases on stammering below under Better to tell employer etc rather than rely on constructive knowledge.
The s.15(2) defence relates to knowledge of the disability. If the employer in that example did know of the stammer, eg if the woman had told them about it, it seems the employer would not need actual or constructive knowledge that the circumlocutions and limited answers resulted from the stammer: below Need not know of causal link with disability.
A teetotal customer with a stammer was initially refused a coffee at a pub, because staff thought 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 next heading and Knowledge of causal link with disability under s.15 EqA>Examples, which deals with a specific discussion of slurred speech in the Grosset case.
On a claim under s.15 the employer or service provider etc need not know of the causal link between the disability (eg the 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 City of York Council v Grosset. See Knowledge of causal link with disability under s.15 EqA.
Example: An employer knows (or should have known) of an worker’s disability. The worker is dismissed for underperformance or misconduct which (unknown to the employer) had a causal link with her disability. The employer can still be liable under s.15. It does not matter whether the employer could reasonably have been expected to know of the causal link.
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
Where a provision, criterion or practice (PCP) applied by an employer places a disabled person at a substantial disadvantage in comparison with non-disabled people, the employer is obliged to take reasonable steps to avoid the disadvantage (Reasonable adjustment rules: employment). However under EqA Sch 8 para 20 this duty does not apply if the employer 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. “Substantial” just means “more than minor or trivial”.
Y v West Yorkshire Combined Authority, Employment Tribunal, 2020
A job applicant told the employer he had a stammer. He argued afterwards that the content of what he was able to say in a presentation to the interview panel was limited by his stammer, which should have led to a reasonable adjustment. The tribunal found that the employer did not know and could not reasonably be expected to have known that the claimant’s stammer put him at that substantial disadvantage of limiting what he was able to say. The reasonable adjustments claim therefore failed. The tribunal accepted the employer did know that the claimant was likely to be at a substantial disadvantage in relation to the time he took to communicate and his speech fluency.
That is a simplified account of the case: see further below Better to tell employer etc rather than rely on constructive knowledge.
This does not necessarily mean that to get protection a job applicant needs to tell the employer about the stammer and any substantial disadvantage, but it can certainly help to do so: see below Better to tell employer etc rather than rely on constructive knowledge, and separate page Recruitment: Should I tell the employer I stammer?
Provided the employer has actual or constructive knowledge of the disability and disadvantage:
- it does not matter whether the employer knew that a particular adjustment should reasonably be made in all the circumstances. Therefore the employer is well advised to consult with the worker on possible adjustments. Separate page: Reasonable adjustment rules: employment>Consultation;
- the onus to comply with the reasonable adjustment duty is on employer. The duty is not subject to the worker or job applicant suggesting a reasonable adjustment, though of course it can be helpful for the individual to do so. Separate page: Reasonable adjustment rules: employment>Onus is on employer.
Y v Calderdale Council, Employment Tribunal, 2003
The tribunal held there was a breach of the reasonable adjustment duty in relation to a job applicant who stammered. The tribunal accepted the force of his argument that it was the employer which understood the exact purpose and nature of the recruitment process, and that the applicant could not be expected to suggest all his own adjustments to cope with a process about which he was not fully informed.
There is no similar express defence to the reasonable adjustment duty for service providers, education providers etc: see separate page Reasonable adjustments by service providers>Knowledge of disability.
Though probably not relevant for stammering, 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 (EqA Sch 8 para 20).
Knowledge of facts of the disability, rather than law
As regards knowledge of the disability, the question is whether the employer etc knew or could reasonably be expected to know of the facts of the disability, broadly that there is an impairment with a long-term and “more than minor or trivial” adverse effect on “normal day-to-day activities”. In an employment claim, the latter should include nearly all work activities. The employer does not need to know that those facts mean there is legally a ‘disability’ under the Equality Act.
The court in Gallop v Newport City Council held this to be so for the reasonable adjustment duty: see below How far can an employer rely on a report by OH saying it is not a disability? However the same almost certainly applies also to the knowledge defence under s.15.
Constructive knowledge – taking reasonable steps to find out
Even if the employer or service provider etc did not know of the disability (or substantial disadvantage in the case of reasonable adjustments), the two ‘lack of knowledge’ defences do not apply if the employer etc could reasonably have been expected to know of the disability (or disadvantage). This is commonly called “constructive knowledge”.
What can an employer etc be reasonably expected to know? The statutory Codes of Practice say that an employer or service provider etc must do all it can reasonably be expected to do to find out whether the employee has a disability and – in the case of reasonable adjustments – is likely to be placed at a substantial disadvantage (Employment Code para 5.15 and 6.19, Services Code para 6.16, also Further and Higher Education Technical guidance para 6.15). If the employer etc does not, the knowledge it would have gained had it done so is imputed to the employer etc, as ‘constructive knowledge’.
The EAT in A Ltd v Z (bailii.org), 2019, said that reasonableness for the purposes of s.15 (very likely the same applies for the reasonable adjustment duty):
“must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the [Employment] Code.”
The Employment Code says:
… What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”
Employment Code of Practice, para 5.15 and 6.19. Similarly Services Code of Practice para 6.16.
The Codes of Practice also give some examples of what it would be reasonable to expect an employer or service provider to do.
Though constructive knowledge can be helpful to a claimant, the position is clearer if the employer has actual knowledge. Three cases on stammering illustrate that it is better to tell the employer etc rather than rely on constructive knowledge (below).
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 employer was held not to have constructive knowledge:
Ridout v TC Group, Employment Appeal Tribunal (EAT), 1998
When applying for a job, the claimant disclosed she had photo-sensitive epilepsy controlled by medication. She said at the start of the interview she might be disadvantaged by the lighting in the room. The employer thought she just meant she might need to use the sunglasses which hung from her neck – which in fact she did not use. The EAT upheld the Industrial Tribunal decision that her reasonable adjustment claim failed. The employer could not reasonably be expected to know that the lighting arrangements at the interview were likely to put her at a substantial disadvantage.
Note: This case was cited but distinguished in Y v Calderdale Council, a case on stammering. There the tribunal said the claimant in Ridout gave little or no indication in her oral interview that she was ‘struggling’, unlike in the Calderdale case.
- Link on constructive knowledge: How do you “know” if your employee is disabled? (employmentlawwatch.com), 2013.
(Gallop v Newport County Council discussed in that article has since been decided by the Court of Appeal: see below How far can an employer rely on a report by OH saying it is not a 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.
Better to tell the employer etc expressly rather than rely on it knowing in some other way
Someone who stammers may think their stammer is as obvious to other people as it is to the individual, so that they don’t need to tell the employer about the stammer. Sometimes the stammer is indeed obvious, but sometimes it isn’t, as in S v Translink below where the employer thought it might just be “nerves”. (The opposite can also happen where someone who stammers thinks other people don’t realise about the stammer but they actually do).
It is possible that even without being told, the employer may have sufficient knowledge of the stammer. Or at least the employer may know enough to have constructive knowledge (above) of the stammer – ie enough to make it reasonable for the employer to make enquiries which would lead to it finding out that the person has a disability.
However often one cannot be sure whether a tribunal will decide an employer has actual or constructive knowledge. The position is clearer if the worker (or job applicant) actually tells the employer etc about the stammer and of any substantial disadvantage. Also expressly telling the employer makes it more likely in practice that eg reasonable adjustments will be made. For more on telling the employer, including what to consider telling them, see separate page Recruitment: Should I tell the employer I stammer?
It is possible that simply telling the employer does not necessarily mean the employer has to believe you, especially if the stammer is not visible to the employer. But if the employer doesn’t just accept your word, telling the employer should at least put it on notice that it needs to make enquiries as to whether what you say is right. If the employer does want to make further enquiries I would suggest co-operating. See Employer requiring medical evidence for reasonable adjustment?
The following cases on stammering illustrate how it may be dangerous to rely on the employer being treated as knowing of the stammer if it has not been told. In three of the cases the employer was held not to have actual or constructive knowledge of a stammer or the substantial disadvantage.
S v Translink, Industrial Tribunal Northern Ireland, 2008
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 tribunal held 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: This decision can be criticised: S v Translink>Lack of knowledge even though stammer was notable at the interview. Even so, it shows that the tribunal may come to an unexpected decision even if the stammer is evident.
As regards whether the employer knew or could reasonably be expected to know of a particular substantial disadvantage resulting from his stammer:
Y v West Yorkshire Combined Authority, Employment Tribunal, 2020
The claimant told the employer he had a stammer and specifically requested that the interview panel ask follow-up questions in the job interview if his answers seemed overly short or concise. This was presumably because of the risk of his responses being limited because of his stammer.
Nevertheless the tribunal found that the employer did not know and could not reasonably be expected to have known that the claimant’s stammer put him at a disadvantage in finding it difficult to say everything he wanted to in his presentation to the interview panel. The tribunal said the employer did know however that the claimant was likely to be at a substantial disadvantage in relation to the time he took to communicate and his speech fluency.
Comment: This decision seems questionable, but points to the desirability of letting the employer know of the substantial disadvantage (if not obvious) as well as the stammer.
However on the facts of another case, the tribunal considered it was obvious to the employer that the claimant’s answers were being limited by his stammer:
Y v Calderdale Council, Employment Tribunal, 2003
The claimant had an obvious severe stammer, and had used text to speech technology in an earlier presentation to the employer. He was unable to convey all he wanted to say in the interview. The tribunal held it was obvious to the interviewers by the time of the interview that he was under a substantial disadvantage. His reasonable adjustment claim succeeded.
The tribunal said Ridout v TC Group (above) was different in that the claimant there gave little or no indication in her oral interview that she was ‘struggling’.
A further case where the employment tribunal found the employer did not have actual or 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, said 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.
Knowledge of any employee or agent will normally count
In the two ‘lack of knowledge’ defences, it seems that a company or other organisation will generally be taken to know something that any of its employees or agents knows (in that capacity).
“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?
Outside of the two ‘lack of knowledge’ defences, sometimes only an individual employee’s knowledge is important (below).
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 that 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 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 that 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 that 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 Q v L (bailii.org), 2019 is 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. 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, Industrial Tribunal Northern Ireland, 2008
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: This decision can be criticised: see S v Translink>Lack of knowledge even though stammer was notable at the interview and above Constructive knowledge – 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.
There are further examples on stammering above under Better to tell employer etc rather than rely on constructive knowledge.
An example of an Employment Appeal Tribunal decision on a rare disorder where the employer knew of the disorder but could not have been expected to know of the substantial disadvantage 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.
Sometimes only an individual employee’s knowledge is important
Outside of the two ‘lack of knowledge’ defences, actual knowledge on the part of the individual decision-maker is important where the test is whether the employer etc took an action, for example dismissed the claimant, “because of” x. Here the individual who decided to dismiss will normally need to know of x.
- For there to be a claim for direct discrimination because of disability, the less favourable treatment (eg dismissal) needs to be because of the disability. The individual decision-maker (eg the person deciding to dismiss) normally needs to know of the disability in order for that to be the reason for her decision: Direct discrimination>Mental process of decision-maker, rather than other staff.
- For there to be a claim for discrimination arising from disability, the unfavourable treatment (eg dismissal) needs to because of “something” arising from the disability. The individual decision-maker normally needs to know of the “something”. Otherwise it would be difficult for that to be the reason for the individual’s decision. Say the claimant is absent from work due to a disability, but the individual deciding to dismiss her did not actually know of the absence. It would be difficult to say the absence was the reason she was dismissed. See the Millar case at Discrimination arising from disability>”Because of…”: decision-maker’s knowledge of alleged reason. That is quite separate from the matters discussed above of whether the employer had actual or constructive knowledge of the disability, and that the employer need not know that her absence arose from the 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 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. Advance notice also increases the likelihood that adjustments will be made in practice).
Legally an employer will often 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. What to consider telling the employer in advance, and when, is discussed on Recruitment: Should I tell the employer I stammer?
The Employment Code of Practice says that advance notice can be relevant to reasonableness:
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 of Practice, para 16.60
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, the ‘reasonableness’ point was one reason the claim failed, but also the ‘lack of knowledge’ defence was 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.
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 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 (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.”