A recent case provides a useful reminder that keeping records about your understanding of an employee’s condition is key.
The employee was dismissed for performance-related reasons, but argued he was disabled and that he’d been dismissed for this reason. He’d suffered two periods of anxiety and depression (prior to his employment), and one following a “traumatic event” during his employment leading to a short period of absence.
The Employment Appeal Tribunal dismissed the claim on the basis that despite the employer’s knowledge of his anxiety and depression following the “traumatic event”, they did not know the effects of the condition were long term (and therefore did not know him to be disabled (for the purposes of the Equality Act 2010)).
Should you have known? – a tribunal will take an objective view. You need evidence to show that you couldn’t reasonably have known about the long-term effects of an alleged disability. In this case, the employee didn’t disclose the previous periods of depression on a medical questionnaire, his period of absence was short and he was certified fit for work. It was reasonable for the employer to assume this was an isolated incident with no long-term impact.
Be proactive – a key factor in this case was that the employer had a number of open and frank conversations with the employee about his absence, and he had not mentioned any long-term effects of his alleged disability. Be proactive in understanding the reasons behind any absence (and document those conversations) to evidence that it would be unreasonable for you to have knowledge of an alleged disability and its long-term effects.
Securing straight-talking advice early is key to minimising risk on any issue that could give rise to a possible discrimination claim – Intelligent Employment is here to help. Find out how.
This update is accurate on the date it was sent (23 September 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.