The Employment Appeal Tribunal (EAT) has confirmed that the duty to make reasonable adjustments under disability discrimination law did not apply where the employer did not know (or could not reasonably have known) that the employee in question was disabled.
An employer is not under a duty to make reasonable adjustments if it does not know and could not reasonably be expected to know that an employee has a disability that is likely to place the employee at a substantial disadvantage compared with persons who are not disabled.
In the case of Wilcox v Birmingham CAB Services Limited, Ms Wilcox was employed as a Debt Advice Caseworker by Birmingham CAB Services Limited ("CAB"), which provides advice at six sites in Birmingham. In 2006, the CAB renegotiated its Debt Advisers' terms so that Advisers were paid less and could be required to work at any of the sites. Ms Wilcox agreed to the new terms under protest.
Ms Wilcox decided that she could no longer afford car parking charges which she paid when at the City Centre site. In early 2007, she asked to work closer to home so she would not need to pay to park. At the time, she informed her employer that she could not use public transport because travelling made her anxious. She had not investigated whether the anxiety was caused by an underlying medical condition.
Ms Wilcox was subsequently signed off with work related stress. The parties sought a medical report in late 2007 and this stated that Ms Wilcox suffered from anxiety in relation to travel and heights and recommended that she take a relatively short and straightforward car journey to work. In 2008, an Occupational Health Practitioner produced an additional report based on Ms Wilcox's medical notes, and described her problems as "work issues medicalised." It suggested a further psychiatric assessment to determine the existence of her travel phobia. However, before that happened, Ms Wilcox resigned and brought a claim for disability discrimination because she was not happy with the CAB's instructions to the medical advisers which, she suggested, portrayed her as selfish and lazy.
At the Tribunal, Ms Wilcox argued that from early 2007, the CAB had sufficient information either to conclude that she was a disabled person or that further investigation should have been commenced, which would have led to the CAB being told that she was disabled.
In the lead up to the hearing, the parties commissioned a joint medical report, which concluded that Ms Wilcox was a disabled person. The CAB conceded that Ms Wilcox had been a disabled person at all material times. As a result, the hearing focussed on whether the CAB should have known that Ms Wilcox's anxiety amounted to a mental impairment in 2007.
The Employment Tribunal and the EAT decided that although Ms Wilcox was a disabled person, there was nothing in 2007 that gave the CAB knowledge of disability, especially given that Ms Wilcox was keen to avoid any suggestion of a mental health problem. It said that Ms Wilcox's condition was unusual and it was difficult to separate the effects of any anxiety from the fact that she was generally unhappy about her working conditions.
It is interesting that the EAT decided that, despite the fact that the employer and employee were seeking medical advice, the employer did not know (and was not expected to know) that the employee was suffering from an impairment amounting to a disability. It was, however, key that the medical opinion the employer had managed to seek was contradictory.
The case also indicates that where employees delay seeking a medical opinion at the request of their employer, they might have difficulty arguing that their employer had knowledge of their disability.