Can Discrimination Arise From A Disability If An Employer Does Not Have Knowledge Of The Disability?

There are several different types of discrimination in the workplace, including; direct discrimination, indirect discrimination, harassment and victimisation, all of which are unlawful under the Equality Act 2010 (EqA). In the case of disability discrimination, discriminatory behaviour can also include; not making reasonable adjustments in the workplace and unfavourable treatment as a result of something arising as a consequence of a disability. 

Whilst many types of discrimination are fairly self-explanatory, lots of employees are unaware of what discrimination arising from a disability really is. 

What is discrimination arising from a disability?

Section 15 of the EqA states that discrimination arising from a disability is when; 

“(1)A person (A) discriminates against a disabled person (B) if—

(a)A treats B unfavourably because of something arising in consequence of B’s disability, and

(b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2)Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.                                                                             “

A couple of common examples of discrimination arising from a disability are requiring a guide dog at work or needing time off for hospital appointments and not being permitted this by your employer. Unlike direct discrimination, it is not necessary to compare the treatment of disabled and non-disabled people with this type of discrimination and you also do not need to establish a direct link between the unfavourable treatment and the disability. 

It is important to note that if the treatment can be objectively justified by an employer then it will be exempt from the EqA though and you will be unlikely to win your claim at an Employment Tribunal. This means, there was no less discriminatory way to achieve the aim, the aim is achieved by the provision, criterion or practice that was put in place, or the discriminatory effect of the provision, criterion or practice is outweighed by the benefit. 

All employees should also be aware that protection from discrimination arising from a disability does not apply if the employer was not aware of the disability. So, in order to increase the likelihood of winning a disability discrimination claim, it is crucial to be able to prove that an employer had knowledge or constructive knowledge of the disability.

An example case

In the case of Stott v Ralli Ltd, the claimant worked as a paralegal for the respondent solicitors. After being dismissed for poor performance, the claimant made a disability discrimination claim against her employer. She claimed that the performance of her work was caused by her mental health issues and she, therefore, experienced disability discrimination. 

After the dismissal, the claimant raised a grievance and during the grievance meeting, she suggested that her performance was affected by her mental health. She said that her disabilities were mental health issues, including anxiety and depression. 

The outcome of her grievance was unsuccessful and the claimant appealed this outcome. There was a hearing of the appeal against the grievance outcome and the claimant asked for the resolution of her issues by way of reinstatement into her position. Her grievance appeal was turned down and this resulted in the claimant bringing a claim to the Employment Tribunal. 

During the Tribunal, the respondent agreed that the claimant had a mental impairment amounting to a disability, but denied knowledge of this disability at the time of the dismissal. The respondent said the claimant had only raised mental health issues for the first time following the dismissal. 

The Tribunal considered that the respondent had demonstrated it had a legitimate aim of maintaining a high standard of accuracy in written communications with clients and the courts, as would be expected of a professional solicitors firm. Therefore, the treatment of the claimant was found to be a proportionate means of achieving that legitimate aim.

Ultimately, the Employment Tribunal dismissed the complaint of discrimination arising from disability in relation to the dismissal. However, the claimant appealed this decision and the case was then heard by the Employment Appeal Tribunal. 

The claimant did not challenge the finding that the reason for her dismissal was her poor performance, but she had three other grounds of appeal, including; “the tribunal erred in relation to the knowledge issue”. The claimant said that the Tribunal should have regarded the grievance process as an integral part of the dismissal process and by the end of that process, the respondent did have knowledge or constructive knowledge of the disability. 

During the EAT, Judge Auerbach acknowledged that in unfair dismissal claims, dismissal is regarded as a process encompassing the appeal stage and outcome. However, it was also acknowledged that the same approach does not universally apply to discrimination claims. 

The EAT found that it was not an error for the Tribunal not to treat the knowledge or constructive knowledge acquired after the dismissal meeting as relevant to the complaint before it, which was solely about the dismissal. Judge Auerbach referred to CLFIS (UK) Limited v Reynolds saying “the proposition that the decision to dismiss was discriminatory, and the proposition that the decision on an appeal was discriminatory, are distinct propositions which must be raised and, if raised, considered, separately, and which will not necessarily yield the same answer.”.

Ultimately, the appeal was dismissed as the claimant did not succeed on all three grounds of the appeal. 

What can employees learn from this case?

Should the claimant in the case above have expanded her claim to include post-dismissal discrimination, there is a chance that the outcome would have been different. As mentioned above and stated in the EqA, if an employer did not know and could not reasonably have been expected to know about a disability then winning a disability discrimination claim can be incredibly difficult. That being said, if the claim included the grievance process, the claimant would have been more likely to win as an employer can still be held liable for disability discrimination if they learned about the disability during the grievance process. 

It is crucial to note that the EqA provides protection for every section of UK employment, this includes dismissal. So, if you find yourself in a similar situation to the claimant above, it is incredibly beneficial to seek assistance from an experienced disability discrimination lawyer. They can provide you with the tailored legal advice you need, helping to ensure you are making the right argument from the outset and increasing the chances of you winning any claims you take to the Employment Tribunal.  

Speaking to a disability discrimination lawyer in London 

If you are being treated less favourable in the workplace and would like to speak to a disability discrimination lawyer in London about discrimination arising from a disability, do not hesitate to contact us at Nationwide Employment Lawyers. Our team of experienced and talented employment law specialists will be happy to discuss the different types of disability discrimination with you in more detail. We have many years of experience assisting clients with disability discrimination claims too, so should you wish to take a claim to the Employment Tribunal, you can rely on us to present your case well. We are committed to winning our client’s cases, whether they have a physical or mental impairment, and we will use our knowledge of the law and sound judgement to ensure you have the best prospect of succeeding.