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Disability discrimination - how to determine disability

Knowing whether an employee is disabled is important in determining an employer’s obligations under the Equality Act 2010, such as when to make adjustments to their employment environment or terms. Quite often, an employer will not know that an employee is disabled. The employee may not know himself. He may get a late diagnosis of a disability or may want to keep it private. 

Employers cannot sit back and wait for the employee to disclose a disability. There have been several helpful cases on this point, particularly the use of and reliance on occupational health reports.

There has also some clarification on whether obesity is a disability.

This article will look at obligations on both employers and employees when determining whether an employee is disabled. It also provides tips for employers when dealing with occupational health referrals and reports.

Even where employers do not have actual knowledge, they can be deemed to have constructive knowledge of an employee’s disability. Employers are expected to make their own decision as to whether an employee might be disabled.

Knowledge can sometimes be imputed for employers who have in-house occupational health services.

Duty to make reasonable adjustments

The duty to make reasonable adjustments is an obligation placed on employers under the Equality Act 2010, to assist disabled employees in getting and remaining in a job in certain circumstances.  It only arises if:

  • an individual is disabled (under the Equality Act 2010)
  • their disability places them at a substantial disadvantage in the workplace compared with individuals who do not have that disability, and
  • the employer is aware or ought reasonably be aware of their disability.

Employees should co-operate with medical information requests

An employee who fails to co-operate with their employer’s reasonable investigation of health problems which impact their work will get short shrift from the tribunal. The Employment Appeals Tribunal (EAT) decision in Cox underlines this.

In the absence of a definitive medical diagnosis, the employer was entitled to rely on occupation health (OH) reports stating that Mr Cox was not disabled. The employer was not bound to conclude that he was disabled, because Mr Cox withheld information by refusing to provide OH with GP records thereby restricting the employer’s knowledge.

Had the employer concluded Mr Cox was disabled, the employer would have had to consider making reasonable adjustments as his condition was impacting Mr Cox’s work.

By the time Mr Cox’s disability discrimination claims reached the tribunal, his employer conceded he was disabled.

However, the tribunal accepted that the employer did not have actual or constructive knowledge of his disability at the relevant time, because of his failure to co-operate with the employer. 

Employers should not rubberstamp views of oh on question of disability

The more recent Court of Appeal case of Gallop, however, makes it clear that an employer cannot ignore symptoms which might indicate a disability. In this case, the employer was ticked off for relying on the OH report in a vacuum and not taking into account what they knew about Mr Gallop.

Mr Gallop was suffering from work related stress and had reported this. He took sickness absence and was referred to OH several times. Each report referenced stress, but no finding of disability. Mr Gallop subsequently claimed failure to make reasonable adjustments under the disability legislation.

The tribunal held that he was disabled and that the employer had constructive knowledge of the disability at the relevant time. The employer had poorly instructed OH. It had failed to give OH relevant details of Mr Gallop’s job and its knowledge of his illness.

As a result, the OH report was very basic. The employer was not entitled to rely solely on the OH report. The employer could have concluded that Mr Gallop’s condition was sufficiently serious to constitute disability taking into account everything they knew, not just the OH report.

Tips for dealing with medical reports and oh

  • OH should be fully briefed. It is clear that employers should make their own judgement as to whether an employee is disabled. The quality of an OH report, and its reliability, will depend very much on how they have been briefed by the employer. An uncooperative employee may prevent employer having actual or constructive knowledge. An employer’s role is therefore to make all reasonable enquiries, before reaching its conclusions. 
  • Seek medical evidence early. An employer who ignores factors which indicate a potential disability are better addressing the issue early, as this will give an employer more control over when to make adjustments, and which ones are reasonable.
  • Consider all relevant sources of medical evidence. Medical evidence can come from GP’s, OH or other consultants treating the employee.  Employers are not bound to accept the first medical report as conclusive. GP reports can be helpful, but are not always sufficiently detailed for the employer to fully understand the implication of an employee’s condition or how to respond. A good OH referral will set out detailed background information and ask relevant questions as to disability, whether it has an adverse impact on the employee at work and how substantial that impact is, what recommendations might be appropriate. For the OH to make sensible recommendations, the OH needs to understand the employer’s business, its size and administrative resources, and the role held by the employee. Only then will the report be focussed.
  • When to disregard medical reports.  Disregarding aspects of a medical report which doesn’t conclude an employee is disabled is possible, and in line with the finding in Gallop, if there is evidence to the contraryDisregarding a finding of disability it not advisable unless there strong evidence to the contrary (eg a conflicting medical report).

Is obesity a disability?

The Equality Act 2010 deems certain conditions as disabilities, eg cancer, partially sighted, epilepsy. Certain conditions are expressly excluded, such as hay fever, exhibitionism, and alcoholic dependencies. Disabilities arising from excluded conditions can be protected though.

For example, while alcoholism is an excluded condition, if it arises from depression that is sufficiently serious, the depression can constitute a disability.

Excluded conditions arising from a disability will, equally, not necessarily be protected. An employee suffering from severe depression may blame his depression on his tendency to exhibit himself. While the depression may be a disability, his exhibitionism would not be protected.

Obesity can cause health problems which affect an employee’s ability to do their job. Until now, there hasn’t been a reported case on obesity and disability discrimination. Interestingly, the Court of Justice of the European Union (the CJEU) has been asked to consider this by a Danish court in the case of Kaltoft.

Among the questions referred to the CJEU was whether EU law prohibited discrimination on grounds of obesity, or whether obesity could fall within the definition of “disabled”. The Advocate General opinion gave his opinion that obesity is not in a protected category (like age or sex are).

However, severe obesity could constitute a disability if it met the statutory criteria for disability. The Advocate General’s opinion is given in advance of the CJEU decision, which is not obliged to follow his opinion; but it does make sense. The rational is such that until a contrary decision by the CJEU, the reasoning is likely to be followed by employment tribunals. 

Obesity is unlikely to ever be a protected category on its own for public policy reasons. Impairments caused by obesity (eg heart problems) could constitute a disability. However, severe obesity that plainly hindered a person’s professional life might provide them with protection in the workplace under the disability legislation.

It will be interesting to watch for the CJEU decision over the next few months.


Cox v Essex County Fire and Rescue Service UKEAT/0162/13 the EAT

Gallop v Newport City Council UKEAT/0162/13; [2013] EWCA Civ 1583).

Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund C-354/13

This article was written by Emma Bartlett.