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Mental impairment. How does the employer know?
There is no general rule that the employer can deny knowledge of an employee’s disability until a clear medical prognosis is provided. A decision whether an employee meets the legal definition of disability, a physical or mental impairment having a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities, can often be decided on the basis of observations and detailed enquiries made of the employee. However, where there is a suspected ‘hidden’ mental impairment but different possible causes of behaviour, it may be reasonable to insist upon obtaining the opinion of a medical professional without which the employer is unable to determine the cause.
In

Cox v Essex County Fire and Rescue Service the employer relied on the position of lack of information.

Disability is a legal construct [s.6 of the Eq Act 2010] and (with exception to prescribed disabilities) the conditions which become apparent to the employer  are often little understood.

When facing a potential claim for reasonable adjustments the employer may reasonably adopt the defence of lack of knowledge (s.20 of Sch 8 of the Equality Act 2010) if;

  1. it did not know, and
  2. could not reasonably have been expected to know, that the person had a disability.

The EHRC Code of Practice on Employment 2011 (para 6.19) contains the example of a worker in a call centre suffering from depression who cries at work and has difficulty dealing with customer enquiries when the symptoms are severe.  This is likely to trigger a duty on the employer to discuss with the worker whether the crying is connected to a disability. The employer should do all it can reasonably be expected to do to find out and the enquiries should be extensive. 

It would seem to follow from this guidance that such knowledge would  undermine the employer’s claim to the s.20 defence, taken together with the employer’s own observations of the worker’s symptoms.

However, an employee’s self-diagnosis is not necessarily definitive. The employer is entitled to take the view that in the absence of a clear medical opinion they did not know that the employee’s condition amounted to a disability. The recent EAT decision in Cox v Essex County Fire and Rescue Service, UKEAT/0162/13/SM is in point.

The facts:

Mr Cox was employed as Deputy Finance Director and suffered an accident at work slipping down stairs, subsequently brought a personal injury claim.  After a number of irational incidents the employer raised performance concerns and in response Mr Cox stated that he had suffered severe concussion from the accident at work and had seen a senior external cognitive behaviour counsellor.

Mr Cox was suspended for gross misconduct relating to his aggressive behaviour and he raised several grievances, one of which stated he was suffering from bi-polar disorder and that his psychiatrist said it was caused via depression resulting from his accident at work.

The employer referred the matter to Occupational Health who wrote to the GP requesting a report but this report was refused by Mr Cox.  Based on this the employer considered it did not know of the disability.

The decisions of the ET and the EAT

The ET held that the employer did not know of the disability at the time of dismissal and the reasonable adjustments claim was defeated. The employer was justified in insisting upon a definitive medical opinion, in the absence of which it did not have knowledge of the disability. The EAT, exercising its narrow jurisdiction, refused to interfere with that finding of fact; it was not perverse. It cited the case of Wilcox v Birmingham Citizens Advice Bureau Services Ltd (UKEAT/0293/10) at paragraph 34. In that case it was difficult for the employer to discern the cause of the employee’s conduct, whether it was the unusual mental impairment from which she suffered, or, her general unhappiness with her working conditions.

Comment

My own view is that business leaders must take a stand on mental health.  I am not alone in this view (read Dennis Stevenson’s FT opinion page) who cites Sir Hector Sants, the former head of the UK financial regulator, has stepped down from a senior role at Barclays after last month’s announcement that he was taking leave because of “exhaustion and stress”. António Horta-Osório, chief executive of Lloyds Banking Group, two years ago took a leave of absence on doctors’ advice, returning in early 2012. Carsten Schloter, chief executive of Swisscom, Switzerland’s biggest telecoms company, is presumed to have committed suicide in July, having talked publicly about the relentless demands of the job. The following month, Pierre Wauthier, chief financial officer of Zurich Insurance, committed suicide, blaming a difficult work relationship.

Mental illness is not just the preserve of the senior management team – it can impact anyone and everyone.

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