The EAT clarifies when employers must make further disability enquiries

Background

In Hussain v London Fire Commissioner, a firefighter brought disability discrimination claims against his employer. The appeal raised two issues: whether the employer ought to have known about his dyslexia sooner, and how the tribunal approached a claim of discrimination arising from disability linked to his anxiety and depression.

Concerns about possible dyslexia arose after many years of employment, during which he had raised no such concerns and earlier assessments had shown no effect on his day-to-day activities. A screening test arranged by the employer indicated a low probability of dyslexia. Later, the employer arranged a further assessment, which confirmed he was disabled. The tribunal found the employer could not reasonably have been expected to know before then. This mattered because most of his reasonable adjustments complaints pre-dated that knowledge.

Separately, he claimed he was treated unfavourably for refusing to give a statement about a safety issue, arguing that his refusal arose from his anxiety and depression.

EAT decision

The EAT upheld the tribunal’s finding on knowledge. Employers must do all they can reasonably be expected to do to find out whether a worker is disabled, but need not make every enquiry where there is little or no basis for doing so. Reasonableness balances the burden of further enquiries, the likelihood of them producing results and the employee’s dignity and privacy, and is essentially a judgment for the tribunal. Once screening showed a low probability, with no other warning signs, further enquiries were not required.

However, the EAT allowed the appeal on discrimination arising from disability. The agreed list of issues identified the “something arising” as the refusal to give a statement, but the tribunal treated his mental health itself as the “something arising”, so it did not answer the question actually posed. Its finding on justification could not save the decision because it had justified the wrong thing, and it had also wrongly focused on the manager’s motive. The claim was sent back to the same tribunal to be considered afresh.

Learning points

A low or negative screening result can justify an employer stopping its enquiries, provided nothing new emerges. Advisers should ensure employers record what enquiries were made and why further assessment was not needed, as the tribunal’s findings carried the day here. That protection is not indefinite: new information or a change in the employee’s difficulties may call for a fresh look. The date of knowledge can be decisive, as it determines which reasonable adjustments complaints a tribunal will consider. On discrimination arising from disability, keep the disability and the “something arising” separate, and make sure evidence and submissions track the list of issues precisely; loose phrasing in submissions contributed to the tribunal’s error here. Any justification defence must address treatment caused by the pleaded consequence, and the alleged discriminator’s motive is not the test.

For more information or advice, please get in touch with Eleanor Searle in our Employment team.