Disability Discrimination - The risks attached to investigating an employee's medical condition

Disability discrimination can be a minefield for employers.  In the second instalment of our new Equality feature by DWF, Sinead Morgan, Senior Associate Solicitor in the Employment Group at DWF, discusses a recent WRC Adjudication case which provides some clarity on an employer’s liability for discrimination in a case where they were unaware that the Employee had a disability at the material time.

Disability discrimination can be a minefield for employers.  The broad definition of "disability" within the Employment Equality Acts 1998-2015 ("the Acts") places a considerable legal obligation on employers. In order to rely on the protection in the Acts, an employee must be in a position to prove that the employer was aware of their disability at the relevant time.

The recent case of a Senior Nurse v A Health Service Provider (ADJ-00014052), which came before the Workplace Relation Commission provides some comfort to employers that they will not be liable if they were unaware of an employee's disability at the material time.

Background to the case

The complainant was a senior nurse who started working with the respondent in July 2018. She availed of parental leave, which ended in September 2016. In advance of returning from parental leave, the complainant applied for access to reduced hours. The complainant was placed at number one on the waiting list to access reduced hours within the Theatre Department of the Hospital.

In the meantime, the complainant was diagnosed with a cardiac related condition and was deemed medically unfit for night duty in the short/medium term. That condition was not disclosed to the respondent. The complainant was refused reduced hours based on her reduced night duty availability. The complainant remained on the "core list" for reduced hours but was ineligible for reduced hours, as she remained unfit for night duty. The complainant was offered reduced hours at a nearby location, but refused to take up this offer.

The complainant became frustrated by the situation and tendered her resignation in January 2018.  The complainant's representative made the first reference to a disability two weeks before she resigned. The complainant claimed that she had been discriminated against in respect of taking up reduced hours due to a cardiac condition disability.

Disability

Disability is defined in section 2 of the Acts as "the total or partial absence of a person's bodily of mental functions, including the absence of a part of the person's body, the presence in the body of organisms causing, or likely to cause, chronic disease or illness, the malfunction, malformation or disfigurement of a part of a person's body, a condition of malfunction which results in a person learning differently from a person without the condition, malfunction, or a condition, illness or disease which affects the person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".

Whether a condition is deemed to be a disability is assessed on a case by case basis by reference to case law. Given the wide definition contained in the Acts, some temporary illnesses have been deemed to fall under the definition of "disability".

In order to establish a prima facia case of discrimination, the complainant had to prove that she had a disability at the time material to her claim and that the respondent was on notice of that disability.  There was a clear dispute between the parties as to whether the respondent was aware of the complainant's disability.

Existence of disability

No medical evidence confirming that the complainant suffered from a cardiac condition was admitted in evidence to the Adjudicator. The Adjudicator found that the complainant had failed to establish facts to indicate that she was suffering from a cardiac condition at the material time.

Knowledge of disability

It was the complainant's position that the respondent was aware of her cardiac condition, which prohibited her from completing night duty, and had discriminated against her on those grounds.

It was the respondent's position that it had never been made aware of the nature of the complainant's disability and that it had no sight of any medical evidence or certification that the complainant suffered from a cardiac condition before the complainant left their employment.  The respondent alleged that they had no necessity to investigate the complaint's medical condition beyond the information the complainant provided or the occupational health reviews, none of which referred to a cardiac condition.

The complainant suggested that the respondents were aware of an incident on 24 October 2016 when she became unwell at work with a very fast heart rate, which resulted in her admission to hospital.  On discharge from hospital, the complainant returned to work and advised her manager that she was on medication and awaiting a medical follow-up.  A number of occupational reports were prepared for the respondent between October 2016 and September 2017, which confirmed that the complainant was not medically fit for nights at present. None of those reports referred to a cardiac condition. It was the complainant's position that those documents put the respondent on notice of her disability, namely a cardiac condition.

Actual notice

The Adjudicator first considered whether the respondent was on notice of the complainant's disability.  No direct evidence or certification of a disability was produced at the hearings, which was a significant factor in evaluating the claim.

Constructive notice

The Adjudicator then went on to deal with the question of whether the respondent should have been able to deduce from the medical information available to it that the complainant had a disability.

Constructive notice arises where a person is under a duty to make enquiries, which, if made, would reveal the knowledge that he/she claims not to have had. The Adjudicator also refused to accept that the respondent could have had constructive knowledge of an illness that amounted to such a disability at the material time.

Decision

Based on the evidence submitted to the hearing, the Adjudicator determined that the complainant had failed to establish facts from which discrimination on a disability ground could be inferred.

What should employers take from this decision?

Employees would be expected to notify employers if they have a disability. As a general rule, employers are not required to investigate whether an employee has a disability. Circumstances may arise where an employer is under a duty to make enquiries and legal advice should be sought if in doubt. Once an employer becomes aware of an employee's disability, the obligations under the Acts come into play. In this particular case, the employer was found to have complied with their obligations in circumstances where they supported the employee and relied on the occupational health reviews that had been completed, none of which referred to a cardiac condition.  This case gives some comfort to employers that they will not be liable in relation to their treatment of an employee in circumstances where they are unaware of an employee's disability.