Paul Fursman
Legal
Disability Discrimination
The Employment Appeals Tribunal (EAT) has recently issued a decision on the issue of whether, and when, an employer could be said to have knowledge of an employee’s disability.
Mr Preston suffered from Primary Reading Epilepsy; a rare form of epilepsy stimulated by reading. As a result he suffered myoclonic seizures on a daily basis. He was employed by Eon Energy Solutions as a customer complaints manager. Before starting employment, he had ticked a box on a form to confirm that he had a disability, but did not specify the nature of it., He was then sent a health questionnaire but he did not complete or return it.
In the winter of 2016/17, Mr Preston had three bouts of winter sickness, as well as an absence due to a back problem. Those absences triggered a sickness procedure. In September 2017 he was signed off from work with “work related stress”. Subsequent Fit Notes also noted “PRE symptoms worsened by stress”. This was the first time that Eon became aware that Mr Preston suffered with PRE.
Eon’s Occupational Health team became involved and adjustments to help Mr Preston manage stress were suggested. In terms of adjustments around PRE, Eon referred the matter to an outside organisation, however Mr Preston did not follow this up or engage at all. In any event, his own neurologist suggested that all that was required was the ability to take regular breaks from reading.
In March 2018, Mr Preston having still not returned to work, a disciplinary procedure was initiated. Eventually he was dismissed on the basis that he was fit to return to work, all reasonable adjustments had been put in place and his refusal to return amounted to gross misconduct. Mr Preston then issued disability discrimination claims in the Employment Tribunal.
There was no dispute that Mr Preston was disabled for the purposes of the Equality Act. The EAT found that nothing disclosed by him prior to his sick leave meant that Eon could, or should, have known about his disability up to that point. The EAT also found that Mr Preston’s sick leave was not related to his disability, that his dismissal was a proportionate means of achieving a legitimate aim (i.e. efficient absence management) and that the reason for his dismissal was Mr Preston’s continued refusal to return to work when Occupational Health had said that he was fit to do so.
Esther Marshall, Member in the Dispute Resolution team, said:
“This decision gives a useful insight into if and when an employer is deemed to have knowledge of an employee’s disability. Put plainly, if the employee does not tell their employer the nature of their disability and / or what adjustments they require, the employer cannot be expected to make those adjustments. It is interesting that in this case, Mr Preston said that he had told his line manager about his PRE, but this did not translate into the organisation having knowledge of a disability.
If you are at all unsure as to your rights as an employee with a disability, or are an employer needing guidance on your duties to your employees, we can help guide you through this tricky area of the law.”