In a somewhat worrying decision for employers, the EAT in the case of Department for Work and Pensions v Hall has upheld a tribunal's decision that the employer had constructive knowledge of an employee's disability, even though she had not specifically informed them of it. The EAT found that in dismissing the employee for misconduct, the employer had treated her less favourably on the grounds of her disability and had failed to consider the question of reasonable adjustments.
Miss Hall, who was employed as an administrative assistant by the DWP, suffered from a psychiatric condition that could be controlled by medication. When Miss Hall was interviewed for the position, one member of the interview panel was someone who had known her for some time. She did not specifically disclose her condition to the DWP and declined to provide any information about her long-term condition in her health declaration form. She also refused permission for the DWP to contact her doctor.
Shortly after starting work Miss Hall was involved in arguments with other members of staff after which she was issued with an oral warning for misconduct, and informed that disciplinary action would be taken if she failed to maintain required standards of conduct. She subsequently applied for a disabled person's tax credit from the Inland Revenue and presented the application form to her manager who passed it on to DWP's HR department.
Further, as a result of later incidents (both verbal and physical) between Miss Hall and other members of staff, Miss Hall was suspended and dismissed following a disciplinary hearing. The reason given for the dismissal was that she had failed to comply with departmental standards of behaviour by repeatedly refusing to comply with reasonable management requests and acting in a "rude and threatening" manner. Her appeal against dismissal was rejected.
Miss Hall complained to an employment tribunal that she had suffered disability discrimination and that the DWP had failed to make reasonable adjustments. The tribunal upheld her claim finding that the DWP had constructive knowledge of her psychiatric condition (which was a recognised disability for the purposes of the DDA). The following factors were significant in the tribunal's finding that the DWP had such knowledge:
- Miss Hall's negative replies in the health declaration form and refused access to her GP or medical records, coupled with her volatile behaviour should have been a "warning sign" to the DWP.
- A member of the interview panel knew Miss Hall but did not mention anything about her health or disability.
- No further enquiries had been made following Miss Hall's application for disability tax credit.
However, although the DWP was found to be in breach of its obligations under the legislation, compensation was limited to an award for injury to feelings, as Miss Hall had refused to take her medication, meaning that no reasonable adjustment could have been made. The DWP's appeal to the EAT was rejected.
This case highlights the importance for employers of having adequate systems in place to ascertain whether or not applicants and employees are disabled and to adapt their working practices accordingly. Although the DWP were not specifically informed of the employee's psychiatric condition, the EAT took the view that there was sufficient information to put the DWP on notice of this fact and modify its treatment of her accordingly. Consequently employers should ensure that where information about disabled employees may come though different channels, that there is a suitable and confidential means of bringing such information together.