Disability discrimination: Employee's failure to provide medical information
Can an employer reasonably be expected to know that an employee who claims to be "bipolar" is disabled, if the employee thwarts a definitive diagnosis?
Not in the case of Cox v Essex County Fire and Rescue Service according to the Employment Appeal Tribunal (EAT). This question is important because there will be no duty to make reasonable adjustments if an employer does not know and could not reasonably be expected to know that the employee was disabled and is likely to be placed at a disadvantage*. This is not a get-out clause: the EHRC Code on the Equality Act 2010 advises that employers "must do all they can reasonably be expected to do" to find out this information.
Mr Cox commenced employment in 2007. In his pre-employment medical questionnaire he confirmed that he suffered from mild depression and was taking anti-depressants. In response to the question of whether he had a disability or health condition which affected his ability to carry out day to day activities he answered "no".
In June 2008 Mr Cox had an accident at work. In 2009 concerns were raised about his performance. Mr Cox told his employer that he was seeing a cognitive behaviour therapist and was suffering from severe depression. The employee was referred to Occupational Health ("OH") who advised that Mr Cox was unlikely to be suffering from a disability.
Later that year Mr Cox was suspended from work following allegations of aggressive, threatening and intimidatory behaviour. The employee alleged that he had been suffering from bipolar disorder for the previous two months and disclosed a report from a psychiatrist which stated "Diagnosis: ?Bipolar Affective Disorder…The picture described by Mr Cox and his wife does seem to suggest that he might have experienced a Hypomanic Episode which seems to be gradually settling down".
Mr Cox was referred back to OH who then sought to obtain medical information from the employee's doctor, as, in their view, it was not clear whether bipolar was an active diagnosis. Mr Cox withdrew his consent to OH obtaining the relevant medical information following advice from his personal injury lawyer.
In February 2010 Mr Cox was dismissed for gross misconduct. He subsequently brought claims against his employer for unfair and wrongful dismissal and disability discrimination.
By the time the matter came before the Employment Tribunal the Fire Service had accepted that Mr Cox was disabled. However, the Tribunal held that Mr Cox's employer had not known and could not reasonably have been expected to know that he was disabled at the relevant time. Further the Tribunal held that the Fire Service had done all that it could reasonably have been expected to do to find out whether Mr Cox had a disability – it had asked the correct questions, but had been thwarted in its attempts by Mr Cox's reluctance to disclose certain medical information. As a result there was no definitive diagnosis of whether Mr Cox was bipolar.
The employee appealed and lost. The EAT upheld the Tribunal's conclusion that it would be wrong to find the employer had actual or constructive knowledge of the employee's illness before it had obtained authoritative medical advice. The EAT went on to say that whilst an employer is not required to know the precise diagnosis of an alleged disability to be liable, it does have to know whether the employee is suffering from a mental impairment the effects of which are substantial and long term. In this particular case that knowledge was absent.
Whilst an employee's failure to co-operate may hinder the employer's attempts to establish whether the employee is disabled, each situation will turn on its own facts. It may well be apparent without medical evidence that an employee with depression, for example, has a mental impairment, the effects of which are substantial and long term. Employers should therefore proceed with caution and should not automatically presume that they have a good defence to a claim for disability discrimination where an employee fails to cooperate in providing medical information.
*NB: What the employer knows or could reasonably be expected to know is also relevant to claims of direct disability discrimination and discrimination arising from a disability, although not to claims of indirect disability discrimination.