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Employers will need to be alive to this earlier date at which disability discrimination protection can arise, particularly given the low threshold for ‘knowledge’ of a disability.
For the purposes of the disability discrimination protections under equalities legislation, cancer, HIV and Multiple Sclerosis are considered ‘deemed disabilities’ – in other words, people suffering from any of these conditions will automatically be classed as ‘disabled’ for the purpose of protection under equalities legislation.
There is no need for an Employment Tribunal to examine whether their condition meets the statutory test for ‘disability’ i.e. a long-term condition which has a substantial adverse effect on a person’s ability to carry out normal day-to-day activities.
Protection from direct disability discrimination can arise not only in relation to the treatment of a person who has a disability, but also in relation to their treatment because of their association with someone who has a disability – for example, if an employee is treated less favourably than others because they have a disabled child, this could be ‘associative discrimination’ on the grounds of disability.
It is necessary for an employer to have knowledge of disability in order for a claim to be brought for direct disability discrimination. This means having actual knowledge that a person has a disability, or ‘constructive knowledge’ i.e. the employer did not actually know that an employee had a disability, but they ought reasonably to have known in all the circumstances.
Statutory guidance suggests an illness will be classed as a disability for the purpose of discrimination protection from the date of diagnosis. However, the Employment Appeal Tribunal has held that an individual will be protected from the date they have cancer, and the date the employer believes that to be the case; and not just from the date the employee is medically diagnosed.
Mr Bennett and his manager, Mr Balaam, worked for MiTAC Europe Limited (MiTAC) in sales/marketing.
Mr Balaam became disabled with cancer and a decision was taken to cease the work done by him and Mr Bennett.
Mr Bennett brought a claim for direct discrimination by association, alleging he was dismissed because of Mr Balaam’s (his manager) disability (cancer).
In considering disability, the Employment Tribunal’s focus was on when MiTAC became aware that Mr Balaam had a diagnosis of cancer.
The Employment Tribunal found that Mr Bennett was not dismissed because of his manager’s disability, but in consequence of his poor performance. The Employment Tribunal dismissed Mr Bennett’s claim for associative direct discrimination.
Mr Bennett appealed the decision.
In considering disability, the Employment Appeal Tribunal held that the Employment Tribunal had erred in holding that for a disability such as cancer, deemed or actual knowledge of the disability required a medical diagnosis.
The Employment Appeal Tribunal said that a person who has cancer is protected under equalities legislation and that disability and knowledge of disability can be established before a medical diagnosis has been obtained.
The Employment Appeal Tribunal commented that it was important to distinguish between a person having cancer and having been diagnosed as having cancer. It is the former that is protected, and a diagnosis is just one of the part of the evidence in establishing the period during which a person had cancer and was, therefore, deemed disabled.
The implications of this decision for employers is, that where an individual with cancer is treated less favourably, the employer could be liable for disability discrimination even if the diagnosis is confirmed subsequent to the less favourable treatment. This is provided that, at the time of the less favourable treatment, the employer has actual or constructive knowledge (knew, or reasonable should have known) that the individual has cancer.
The Employment Appeal Tribunal noted in its decision that this approach may cause practical difficulties. However, it felt that finding otherwise could cause unfairness for people who are awaiting a diagnosis or do not obtain a definite diagnosis during their employment. Equally, it would be unfair towards employers whose employee had an erroneous diagnosis of cancer.
The key to this somewhat complex issue is to maintain an enquiring mind in relation to employees who may be suffering from cancer, making reasonable enquiries about their health. Remember that your duties under equalities legislation may arise even in the absence of a definitive diagnosis or any diagnosis at all.
To read the full judgment: click here.
For further information on knowledge of disability, the rise of the disability agenda and dealing with occupational health , please listen to our recent employment podcast, available here.
Contributors: Danielle Futcher and Sarah Maddock
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.
01 December 2021