EAT clarifies position on employer's lack of knowledge of disability

Article

27 March, 2018

The Employment Appeal Tribunal recently confirmed that the Claimant's strong belief that he has a disability isn't enough to ensure that his employer should be regarded as knowing, or be reasonably expected to know, of his disability.

In Toy v Chief Constable of Leicestershire, the Claimant (Mr Toy) had been a PCSO in Leicestershire Police since 2006, and had entered a probationary period as a Police Constable on 11 November 2013. Mr Toy's tutor had concerns about his progress during his training and he was subsequently assigned a new tutor. This new tutor also had concerns, and confirmed the view that Mr Toy was not ready for independent patrol and considerable progress was necessary to bring him to the required standard.

Due to the ongoing concerns, the Claimant's services were terminated during his probationary period pursuant to Regulation 13 of the Police Regulations 2003. Regulation 13 states that a Chief Constable may dispense with a probationer's services if he considers that the probationer is not fit to perform the duties of his office or that he is not likely to become an efficient or well conducted Constable. A written policy sets out a three-stage procedure to be followed when considering dispensing with the services of a probationer Constable, necessitating a management guidance meeting (MGM); a Regulation 13 meeting; and finally, a meeting with the Chief Constable.

At the Regulation 13 meeting, the Claimant raised the possibility that he was dyslexic for the first time. At the subsequent meeting with the Chief Constable, the possibility that the Claimant had dyslexia was raised once again. However, evidence was not provided and the Chief Constable was unsure of the validity of the claim. The Claimant was then dismissed and brought a claim of direct disability discrimination and failure to make reasonable adjustments.

Although the Claimant's disability had been conceded by the parties, the Employment Tribunal found that the employer was unaware of the Claimant's alleged disability at the material time and therefore the claim was dismissed. On appeal, the EAT held that the tribunal was correct in concluding that the employer did not, and could not reasonably have been expected to know that the Claimant was disabled at the material time. The employer could not, therefore, be liable for complaints of discrimination arising from disability and a failure to make reasonable adjustments. The Chief Constable did not and could not reasonably have known of the disability, so the appeal failed.

Whilst the EAT found in favour of the employer, it is clear that it is not sufficient for employers to rely solely on employees to provide information in relation to any potential disability and expect evidence of the disability to be provided to them before they take any associated action. Jonathan Holden at Forbes Solicitors advises that "If an employer has suspicions that an employee has a disability, it would be advisable for the employer to investigate the matter further as soon as possible and implement any relevant adjustments to protect its position and remove any disadvantage to the employee. Whilst the employer was successful in this instance, it is not enough for employers to sit back and put the onus on employees."

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