One of the key ingredients to a claim of disability discrimination is proving that the employer knew about the disability.
In the case of Preston v E.on Energy Solutions Limited, the Respondent successfully established that it had not known of the Claimant’s disability prior to a period of absence unrelated to the Claimant’s disability.
The Claimant suffered with Primary Reading Epilepsy. The Tribunal found that this put the Claimant at a substantial disadvantage because the risk of seizures was increased when reading.
However, the Tribunal went on to find that the Respondent had no knowledge of this disability as the Claimant had never spoken of it. The Respondent only found out about the condition when the Claimant went off sick with another health problem.
In the course of discussions with the Claimant to facilitate a return to work and make the necessary reasonable adjustment, the Respondent became aware of the disability. It took steps to work with the Claimant to make adjustments for this condition.
The Employment Tribunal was clear that, as this was the first knowledge the Respondent had of the condition, it was the first time the duty to make reasonable adjustments had arisen.
The Respondent had not failed in its duty to make adjustments earlier because, until the absence, it had no knowledge of the Primary Reading Epilepsy and could not reasonably have been expected to have knowledge of it.
The dismissal of the Claimant was also found to be fair, as the reason for the dismissal was not on the basis of the disability, but because of the Claimant’s failure to engage with the Respondent in the return to work process and discuss reasonable adjustments.
The EAT found that the dismissal was due to this failure to engage in the process, and was therefore a fair dismissal in line with its sickness absence management process.
It is a case which underlines that, when dealing with disability discrimination, knowledge is key.
21 February, 2023
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