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Disability without a Diagnosis – An Update on Disability Discrimination

A recent Employment Appeal Tribunal (EAT) judgment has provided a reminder to employers about their duties when it comes to disabled employees.

The Equality Act 2010 places an obligation on employers to take steps to prevent disability discrimination at work, as well as a duty to make reasonable adjustments to remove or reduce the impact of an employee’s disability so they can do their job. However, an employer cannot take those steps unless it knows, or should have known, about the disability.

A disability is quite widely defined in the Equality Act. It does not mean a condition that is formally diagnosed, but a ‘physical or mental impairment’ where the impairment ‘has a substantial and long-term adverse effect’ on the person’s ability to carry out normal day-to-day activities. There are also some conditions or impairments that are automatically classed as a disability. Cancer is one of these conditions.

In Bennett v MiTAC Europe Limited, the EAT made it clear that a person is disabled from the date that they have the cancer, and not from the date of their formal medical diagnosis. This means if for any reason an employer has actual or deemed knowledge of the cancer even before the diagnosis, the disability can be established.

The reality is that in most circumstances, the employer’s knowledge of an employee’s cancer, or other condition, will come about because the employee has told them of their diagnosis. However, there may be circumstances where an employer’s knowledge (or deemed knowledge) arises because of informal discussions with the employee, or even because of red flags with the employee’s performance or conduct.

It is therefore good practice, regardless of whether an employee has provided a medical diagnosis, for employers to consider support at an early stage where ill health is a concern. Failure to do so can lead to potential issues down the line.

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