A recent case has held that it is not necessary for an employer to know about a disability for a dismissal to be discriminatory. This case has serious implications for employers.
The employee had worked for his company since 1979. In May 1996 he went sick, though the diagnosis and prognosis of his condition were not clear. Nine months later, in February 1997, the employer told him that if he did not return to work, he was likely to be dismissed. The employee thought he was suffering from chronic fatigue syndrome and arranged to see a consultant immunologist on 28 April 1997.
On 3 April 1997, the employee attended an interview with his employer, whose medical adviser noted that the employee was not fit to return to work. The employee asked the employer to wait until he had been seen by the consultant before making any decision about dismissal. The employer did not wait, but wrote to him the following day, saying that the employee was dismissed. He was diagnosed as suffering from chronic fatigue syndrome on 6 August 1997.
The employee complained that he had been unfairly dismissed and discriminated against on grounds of disability. The employer conceded that the employee was suffering from chronic fatigue syndrome, and that this was a disability within the terms of the Act. The employer argued that they did not have any knowledge of this disability at the time of the dismissal.
The industrial tribunal (now called an employment tribunal) held that the dismissal was fair under ordinary employment law as it related to the employee’s capacity to do the job. However, the tribunal then held that the dismissal was unfair under the Disability Discrimination Act 1995 because it arose from a disability.
The employer appealed to the Employment Appeal Tribunal which upheld the tribunal’s decision. The tribunal had held that, in determining whether there was disability discrimination, it should use as a comparator a person who had been off work for a similar length of time for a non-disablement reason. The Employment Appeal Tribunal noted that, in the light of a Court of Appeal decision, the correct comparator was an employee who was not off work at all.
The tribunal had followed a 1998 precedent that an employer could not treat an employee less favourably for a condition of which the employer had no knowledge. The Employment Appeal Tribunal held that there was no basis for interpreting the Act through the eyes of the employer in this way. They cited the hypothetical case of a postman who, unknown to his employer, has an artificial leg and therefore delivers mail more slowly. If that postmen were dismissed, he would have suffered an illegal detriment under the Act. There was no provision in the Act which imposed an additional requirement that the employer knew of the disability.
In this case, the employer had failed to show a reason for the discrimination which was “both material to the particular circumstances of the case and substantial”. In particular, the employer had not considered whether the employee could have been offered alternative work. If that had been considered, and there was no suitable alternative work or other adjustment that could have been to accommodate the disabled employee, then dismissal on grounds of incapacity might have been fair.
A curiosity of the decision is that the Act excuses an employer for not making an adaptation for a disabled employee if the employer did not know of the disability, but does not require knowledge of disability for dismissing or disciplining an employee. It is advisable for employers to change their procedures in the light of this case, so that an employee facing dismissal or any other disciplinary penalty is asked whether the subject of the complaint is due to any disability.
H J Heinz Co Ltd v Kendrick. Employment Appeal Tribunal [1999]
[2000]