
Dealing with Undisclosed Disabilities – Your Questions Answered
In this month's First Tuesday Q&A, Fiona Sharkey, Associate in A&L Goodbody's Employment Group, provides some insights on undisclosed disabilities.
Is an employee obliged to disclose their disability?
No. However there are benefits to an employee in doing so.
Note that the definition of a disability (contained within Section 2 of the Employment Equality Acts 1998-2015) under Irish law is very broad. Once informed of an employee's disability, an employer has an immediate obligation to make reasonable accommodations and ensure the workplace is accessible, unless such measures would impose a disproportionate burden on an employer. What constitutes a disproportionate burden is dependent on the costs involved, the employer's own resources and the availability of public funding or assistance.
Is there a general legal requirement to conduct pre-employment medical assessments?
No. With the exception of a certain number of industries where such medical assessments are legally required, for example the railway and aviation industry, employers should be wary of mandating pre-employment medicals for prospective employees. Employers may inadvertently expose themselves to discrimination claims on grounds of disability during the recruitment process. Once placed on notice of an employee's disability, an employer is under a statutory duty to make reasonable accommodations to facilitate the employee's meaningful participation in employment.
An employer must also consider the GDPR implications of holding such "special category" personal data, and in that regard note the importance of maintaining a robust privacy notice.
How should employers manage an undisclosed disability?
Two recent WRC decisions are instructive on this topic.
In A Clerical Officer v A Public Service Employer ADJ-00018924 (2019), a disability discrimination claim was brought by a clerical worker. The complainant maintained that he suffered with obsessive compulsive disorder (OCD) when he was put on a performance improvement plan (PIP) by his employer during his probationary period. The respondent employer was unaware of his disability when it sought to address the employee's poor performance. On the fourth meeting with the employee regarding his performance, the employer was made aware of the employee's disability. The HR department instructed his direct managers not to disclose the details of his disability to his co-workers. Complaints about the complainant were submitted by his co-workers, however they remained unaware of his disability.
Ultimately, the Adjudicating Officer (AO) found the complainant "made a very substantial contribution to the events of which he now complains, by his failure to initially declare his disability and to provide medical evidence of it and then to insist that his co-workers should not be made aware of it". The AO concluded that the complainant's claims were unfounded and without merit.
In Gemma Kiernan v J&E Davy (t/a Davy Stockbrokers) ADJ-00030172 (2022), Davy was ordered to compensate a former employee €20,000 for disability discrimination, having asked the complainant to resign 10 days after she had been diagnosed with epilepsy.
The complainant was put on a PIP in June 2020 owing to her substandard quality of work. In the same month, the employer's occupational health provider determined that the complainant's health condition would not negatively impact on her ability to perform her work duties. The complainant's epilepsy was formally diagnosed in July 2020. Following this, the PIP took on what was described as an 'unusual turn'. In August 2020, the complainant was given two options: (i) to resign at the end of the PIP and receive a two months' notice payment; or (ii) to let the PIP continue to completion and then face a likely disciplinary process. The AO stated that the award of €20,000 reflected "the impact that the discrimination had on the Complainant"; "takes into account the conduct of the Respondent"; and was to "deter this conduct being repeated".
What about the 'lack of knowledge' defence?
As established in Connacht Gold Co-Operative Society v A Worker (ED0822), this defence is available to employers with no actual, constructive or implied knowledge of an employee's disability.
In Swan O' Sullivan v Counihan (EDA10/2018), an employee claimed to have been discriminated against on grounds of disability when he was dismissed from his employment due to performance-related issues following his probationary period. The employee had not at any stage informed his employer of his disability. The Labour Court rejected his claim after establishing that the employee had failed to produce medical certificates when requested by his employer. The Court held "(…) before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person".
The decision of Receptionist/Office Administrator v Manufacturing Company ADJ-00023749 (2020) can be distinguished. The employer was held to have "failed in its duty to inquire further" and to have been "aware that [the employee] had a disability but chose to ignore it". In this case, the employee, while not formally having informed her employer that she had a disability, had explicitly told the employer of the manifestations of same, namely that she suffered memory and hearing loss, and her employer was held to have had constructive notice of the disability.
What role does Occupational Health play?
Occupational Health (OH) will be familiar to readers as a specialist medical practitioner, who understands occupational health issues and what advice is required by an employer.
The aim of an OH referral is generally to obtain an assessment of an employee’s fitness to work and possibly to determine what, if any, adjustments or reasonable accommodations may be needed to assist an employee in their return to work or that may be required long-term. Therefore, OH assessments can play a crucial role in the context of employees with disabilities (whether disclosed or undisclosed).
How does an employer make the best use of an OH referral?
While there is no "one-size-fits-all" approach to an OH referral in a given fact pattern, the below are some suggested steps an employer can consider*:
- Brief the OH specialist adequately and appropriately at the outset of the referral. Give context to the OH specialist – they cannot advise in a vacuum. They need to understand what the employee does; provide a role description including the employee's duties, and the function of the team they work on. Include any medical information that the employee has provided.
- State what information is required. The OH specialist will be best placed to give useful advice if he/she knows what advice is required by the employer.
- Don't mislead or lead the OH specialist – it is important to bear in mind that any letters exchanged between the employer and the OH specialist may potentially be disclosed to the employee at a future date on foot of a data subject access request or potentially in the context of litigation.
*Note that consideration should be given by the employer to any GDPR obligations that may arise - for more information in relation to this topic, please contact Fiona Sharkey or any member of the A&L Goodbody Employment team.
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