The risk of blissful ignorance – can an employer be liable for disability discrimination before an employee is diagnosed with a disability?

The EAT has recently held that an employee with cancer will be disabled under the Equality Act from the date on which they fell ill, and NOT from the date on which the cancer was diagnosed (Bennett v MiTAC Europe Limited).  The Judgment provides a sobering read for employers.  In particular:-

• An employer will have knowledge of disability if, given the employee’s obvious state of health, it ought reasonably to have known the employee might be disabled;
• An employer is expected to carry out reasonable enquiries into an employee’s ill health, and if it fails to do so knowledge of disability may be implied;
• There is no reason why a person could not be discriminated against because of disability if at the time it is thought that a disability will arise at a later date; and
• The attitude of the employer towards an employee who is unwell, but not known to be disabled, could be relevant to determining the reason for the treatment of the person once disability is established.

The EAT’s comments highlight the practical difficulties employers face when managing employees with underlying health conditions.  The suggestion that the way in which an employee is treated when ill (but before they are technically disabled), can be relevant to any future disability discrimination claim will be particularly troubling for employers.  In particular, what is the practical impact of this Judgment on the duty to make reasonable adjustments?  Could the duty to make reasonable adjustments be triggered much earlier than thought?

For example, it is clear from this Judgment that an employer who fails to make adjustments for a sick employee, who is later found to have cancer (or some other disability), could find this failure being used as evidence against them in a later discrimination claim. 

However, taking this a step further – is it possible that the duty to make adjustments could arise when a sick employee, who is not yet disabled (but may be in the future), is placed at a substantial disadvantage as a consequence of their ill health? In other words, could the duty to make reasonable adjustments be triggered before an employee is actually disabled?

This case is a salient reminder that employers cannot simply ‘bury their head in the sand’ in the hope of remaining ignorant of any potential disability, and should ensure managers understand the importance of identifying any underlying causes for performance or conduct concerns, and flag these to HR so that appropriate enquiries can be made. Employers should consider what adjustments or support can be implemented at an early stage, regardless of whether the employee is known to be disabled.   Indeed, addressing underlying health concerns, whether they are likely to amount to a disability or not, is best practice.  At the very least, early intervention will help to avoid serious performance issues, dismissals and ultimately tribunal claims.