Mon, 12 Dec 2011
By Gemma Roberts
In Wilcox-v-Birmingham CAB Services Ltd  EqLR 810, the Claimant suffered from agoraphobia which severely impacted upon her mobility; it was accepted only during the course of the ET proceedings that her condition satisfied the statutory definition for disability and hence that she was disabled. However, the ET had been entitled to find that the duty to make reasonable adjustments under s4A DDA (now s20 and s21 EqA) had not arisen because the Respondent did not actually know that the Claimant was disabled and did not have constructive knowledge of her disability, that is, it could not reasonably have been expected to know that the Claimant was disabled until the psychiatrist’s report was obtained during the proceedings.
Underhill P clarified the law in respect of Eastern and Coastal Kent PCT v Grey [  IRLR 429 and Secretary of State for Work and Pensions v Alam  IRLR 283, explaining that there was no conflict between those authorities. It was “spelled out” that an employer is not under a duty to make reasonable adjustments unless he knows (actually or constructively) both 1). that the employee is disabled and 2). that he or she is disadvantaged by the disability. Element 2) does not come into play if the employer does not know element 1).
The question of whether an employer knew, or ought to have known that an employee was disabled requires a factual assessment by the tribunal. In the present case, the Claimant’s condition was complex and the impairment from which she suffered was over-laid by a marked discontent with her working conditions generally. Further, the Claimant had been reluctant to disclose to her employer any information relating to her mental health. The Respondent had not acted unreasonably in failing to obtain a psychiatrist’s report sooner.