20 September 2018

Proving disability in the tribunal

1:53pm

Can an employee prove disability without leading evidence on the impact of his impairment on normal day to day activities?

Does an employer have constructive knowledge of disability if an employee has denied having one?

No and no, held the EAT in Mutombo-Mpania v Angard Staffing Solutions Ltd.

The claimant worked for an organisation providing casual staff to the Royal Mail Group. On joining he did not indicate disability on his application form and failed to disclose a disability on a health form.

He sought to rely on his impairment of Essential Hypertension to avoid working regular night shifts. Despite medication his symptoms included headaches, fatigue, breathing difficulties and lack of confidence.

The claimant provided no evidence for the tribunal of the functional impact of his impairment on his ability to carry out normal day to day activities. The burden of proof is on the claimant to demonstrate substantial adverse effect. He failed to do so and did not meet the section 6 Equality Act 2010 definition.

On the issue of knowledge, even if the employer was under a duty to ask questions, a vague reference to a “health condition” did not infer constructive knowledge. The employee had worked night shifts before and had denied having a disability.

The claimant in this case was a litigant in person. Had he provided an impact statement for the tribunal on the functional impact of his impairment on his ability to carry out normal day to day activities he might have been able to demonstrate disability.

It is not easy for an employee to demonstrate that they meet the Equality Act 2010 definition of disability but without showing that there is a substantial adverse effect on function they are doomed to failure.

It is well-established in disability discrimination law that a health condition or impairment does not equal a disability. Merely being sick does not equal disability. There must be a substantial impact on daily abilities otherwise the definition would capture far too many employees and place an unequal burden on employers. The ODI Guidance which can be found online is useful for litigants in person wishing to demonstrate disability. The burden of proof is on the person alleging that they have a disability. This is the first hurdle for any disability discrimination claim unless there is one of the “automatic” disabilities (cancer, MS, HIV, some severe sight impairments).

Medical evidence in support of functional impact will always assist even if it is a short report from a GP setting out the kind of impact the impairment is capable of producing.

On the issue of knowledge, it is common for employees not to declare any health issues on joining a company. If, however, you wish to rely on your condition to get the additional protections offered by the Equality Act 2010 it is important that someone in your employer’s organisation does know that you have a health condition. If Occupational Health has knowledge this will be imputed to the wider business, so you do not specifically need to tell your line manager. Remember though: you cannot allege disability discrimination if your employer does not know you have or might have a disability.

Written by Karen Jackson. A second edition of her book Disability Discrimination Law and Case Management will be available in Spring 2019.

A shorter version of this blog first appeared on Daniel Barnett’s Employment Law Bulletin.

 


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