Disability Discrimination continues to be a hot topic in the Employment Tribunals. The Court of Appeal has now delivered its judgements in two such cases:

Donelien v Liberata UK Ltd

This case dealt with the extent to which employers have knowledge of an employee’s disability, and the lengths they should take to investigate whether a less forthcoming employee has a disability in law.

The key points flowing from this decision are as follows:

1. Employers should make sure that questions to Occupational Health are framed in an open way, to allow the health professional to provide a detailed response and full reasons as to why they consider the employee does or does not have a disability in law. I would discourage simply accepting a ‘yes’ or ‘no’ answer to the question as to whether there is a disability. If the answers are still not clearly explained, request a second report.

2. Employees should also provide their own medical evidence to deduce whether they have a disability.

3. Employees and their advisers need to be more open and cooperative in the sense of agreeing to provide information and allowing free lines of communication between GP’s and specialists. This will be welcomed by employers.

Peninsula Business Service Ltd v Baker

In this case, the Employment Appeals Tribunal considered whether an employee had to prove that he was actually disabled to claim disability harassment under the Equality Act 2010. It held that disability must be proved, not asserted.

This case is good news for employers as it makes it more difficult for employees to bring harassment claims on the basis of perceived disability. However, the importance of obtaining a medical report where an employee asserts he or she has a disability is still paramount. Furthermore, in this case Peninsula arranged covert surveillance of its employee. Any covert surveillance must not breach an employee’s right to respect for private and family life under Art. 8 of the European Convention on Human Rights.

If you are unsure about any element of this topic, which is undoubtedly sensitive and can be difficult to manage, feel free to give me a call on 01484 821300.