Most employers are well aware of the duty to make reasonable adjustments when an employee is known to be disabled. What happens, however, if the employer doesn't know that an employee is disabled? The EAT in Wilcox v Birmingham CAB Services Ltd considered what knowledge of an employee's disability is required to give rise to a duty to make reasonable adjustments.
In 2007, the claimant's request to move to an alternative workplace location closer to home was refused, and the following day she went off sick with work-related stress. There was no mention at this stage of any travel anxiety. When the company commenced its attendance management procedure, she raised a grievance. She then delayed her employer's attempts to get a medical report, but ultimately agreed that her cognitive behavioural therapist could provide one. This stated that she suffered from travel anxiety and recommended a short car journey to work. The company explored various possible solutions with the claimant, none of which were deemed suitable by her. Later in 2008, a meeting was held to discuss possible termination on the grounds of capability. The claimant refused her employer's request that she be examined by occupational health, resigned and claimed constructive dismissal and a breach of the duty to make reasonable adjustments.
The EAT, in dismissing all the claims, held that the employer was not under a duty to make reasonable adjustments, as it didn't have either actual or constructive knowledge of the Claimant's disability at the relevant time. The report from the cognitive behavioural therapist referring to an anxiety disorder was not sufficient to confer such knowledge; the employee was reluctant to acknowledge a mental health condition; and she accepted that she had delayed her employer's attempts to obtain a medical report. Therefore, the company did not know and could not reasonably have been expected to know that she was disabled until it received a consultant's report, which was commissioned during the tribunal proceedings.
Impact on employers
- An employer is not subject to the duty to make reasonable adjustments if he does not know, and could not reasonably be expected to know, that an employee is disabled and is likely to be at a substantial disadvantage compared to non-disabled employees as a result.
- Employers should always seek to make decisions on the basis of up-to-date medical advice where concerns have arisen in relation to a particular condition. The EAT, in this case, stressed the fact-specific nature of this case, however it appears that if an employee fails to provide information or obstructs the employer's attempt to obtain medical evidence, they may have more difficulty in attributing knowledge of any disability to the employer.