Is Strong Belief Enough for an Employer to Be Regarded as Knowing of an Employee's Disability?
In the recent case of Toy v Chief Constable of Leicestershire, the Employment Appeal Tribunal (EAT) ruled that the Chief Constable did not and could not reasonably have been expected to know that the Claimant suffered from dyslexia...
...when the possibility that he may suffer from dyslexia was only raised by the Claimant during the course of a termination process and even then the Claimant was not certain of this.
The Case
Mr Toy, a probationary Police Constable, was let go during his probationary period under Police Regulations due to performance concerns. During the termination process he raised the possibility that he might be dyslexic. Prior to the termination process there had been no suggestion that Mr Toy either had or suspected he had dyslexia. When he raised dyslexia, Mr Toy was only suggesting that he may suffer from the condition.
Following his dismissal Mr Toy brought claims for discrimination arising from disability and failure to make reasonable adjustments.
The Decision
The Employment Tribunal dismissed Mr Toy's claims on the basis that the Chief Constable did not know, and could not reasonably have been expected to know, that Mr Toy was disabled at the time of the dismissal.
On appeal the EAT held that the Tribunal had not erred in law in reaching this decision.
Best Practice
Although the case provides some reassurance that an unclear and uncertain assertion of potential disability will not trigger obligations under the Equality Act 2010, it would be sensible to treat this with a degree of caution. The test is what an employer could reasonably be expected to know. If an assertion arises following medical treatment or relates to historically diagnosed medical conditions then the employer is likely to have to do more to discharge its duties.
Furthermore staff with two years' service or more have the right not to be unfairly dismissed and employers are required to ensure they follow a fair and reasonable procedure before deciding to dismiss. Investigating the impacts of possible health conditions upon performance may form part of a reasonable procedure.
It is therefore likely that employers will usually want to seek medical advice in respect of possible health conditions so that they can be as informed as possible when making management decisions.