• rradar

When does disability discrimination begin? A new judgment may have significant implications

Updated: Jan 5



At what point does the law consider an employee with cancer to be disabled? If you answered, “at the point of diagnosis”, a recent Employment Appeal Tribunal case might be about to change that.

The case, that of Bennett v MiTAC Europe Ltd saw the EAT rule that an employee with cancer will be disabled from the date that their illness began, not the date on which they were diagnosed. If the employer has actual or deemed knowledge of the cancer then disability and the knowledge requirement can occur before a medical diagnosis.


What happened?

The claimant, Mr Bennett was recruited as the UK Sales Manager of MiTAC by Mr Balaam, who had just been appointed as UK Sales and Marketing Director.

Mr Balaam was admitted to hospital with a suspected heart attack. Following this, he sent an email to colleagues at MiTAC saying:

“I underwent various tests. They have found that I was suffering from extremely high blood pressure (which is now being controlled) and have found a growth on one of my kidneys. At present they can only guess what this growth may be and…I will need to undergo a biopsy to see what the gross growth is. If the doctors find something sinister, I will need to undergo treatment…”

Four months later, he was diagnosed with kidney cancer. He immediately informed MiTAC. Three weeks after this, MiTAC decided to dismiss both Mr Balaam and Mr Bennett. They initially reversed this decision due to business reasons but then changed their mind and dismissed them, just under a month after Mr Balaam had informed them of his diagnosis. Mr Bennett then brought a claim alleging direct disability discrimination based on Mr Balaam’s disability of cancer.

The Employment Tribunal said that because of Mr Bennett’s submission, the burden of proof that discrimination had occurred had shifted to MiTAC to show otherwise, but said that MiTAC had achieved this through its evidence and dismissed Mr Bennett’s claim.

Mr Bennett took his claim to the Employment Appeal Tribunal, who allowed his appeal. They said that although the ET had been correct to rule that the burden of proof had indeed shifted to MiTAC, there was insufficient reasoning as to why the burden had been discharged, particularly considering that the Global President of MiTAC, whose decision it had been to dismiss Mr Bennett and Mr Balaam, was not called to give evidence.

The EAT also said that the ET had been wrong to rule that an employer could only be counted as knowing about the disability once a diagnosis had been made.


Why is this judgment interesting?

This judgment clarifies the point at which someone with cancer can be classed as disabled. This is interesting because it seems to say that the statutory guidance attached to the Equality Act is misleading by referring to diagnosis. The wording of the Act says that cancer is a disability and therefore from the point at which a person has cancer, not the point of diagnosis (which may come some time after the disease has appeared) that person is counted as disabled.

Therefore, less favourable treatment of someone with symptoms of ill health that become evident before a formal cancer diagnosis is obtained will be classed as disability discrimination. This is provided that at the time the less favourable treatment happened, the employer has “actual or constructive knowledge” of the fact that the employee had cancer (this is interpreted as “they knew, or should reasonably have known” that the employee had cancer).


What is constructive knowledge?


This is a term that refers to knowledge that someone should reasonably be expected to know or have known, regardless of whether they actually knew it. This means that an employer who is presented with clear facts but chooses to ignore them and pretend they didn’t know won’t escape liability – the law will assume they should have known and proceed accordingly.


So, in the case of Balaam, although there wasn’t a formal cancer diagnosis when he emailed his employer to notify them of the growth on one of his kidneys, his state of health became so obvious to all concerned that the employer ought reasonably to have started asking questions about those health problems.

MiTAC were considered to have constructive knowledge of the disability and would therefore be liable for disability discrimination under the Equality Act even though there had been no formal diagnosis of cancer.

The EAT said that the attitude an employer takes towards an employee who is suffering from ill health but not known to be disabled could be relevant to any discrimination claim once it becomes known that the ill health is counted as a disability.


What does the law say?

Section 6 of the Equality Act 2010 defines disability thus:

(1) A person has a disability if—

(a) they have a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. … (6) Schedule 1 (disability: supplementary provision) has effect.

Paragraph 6 of Schedule 1 of the Equality Act 2010 says that certain medical conditions: Cancer, HIV infection and multiple sclerosis are each a disability.

The word “diagnosis” does not appear in paragraph 6 of Schedule 1. It is taken from the relevant guidance and as the EAT pointed out that “if there is any doubt, the statute prevails over the guidance.”


The burden of proof

When bringing a claim of disability discrimination, it is the tribunal that makes the finding of disability for the purpose of the litigation, not the claimants’ medical experts. The claimants bear the burden of proving that they are disabled, and they can usually provide sufficient medical evidence to shift that burden of proof. Once they have done that, the employer has to show that they did not discriminate against the employee and unless they can do that, the tribunal must rule that discrimination has occurred.

Before the judgment of the EAT was complete, the Supreme Court case of Efobi v Royal Mail Group [2021] ICR 1263 was decided and this was factored into the reasonings of the EAT in Bennett; that when considering if the burden of proof has shifted to the respondent, a common sense approach considering the reasons why the decision maker has not given evidence, is to be taken, rather than automatically drawing an adverse inference from such lack of evidence. The tribunal has to consider ‘cogent evidence’ which may be satisfied through documentation, but there is a risk that a documentation-only strategy will make it easier for the burden to transfer. However, a point that Efobi did not address, but which was commented upon by the Supreme Court in that case is the potential difficulty that a respondent may be in once the burden has shifted to it if the decision maker does not give evidence.


What should employers do?

Managers should be trained to understand how important it is that for performance or conduct concerns, the underlying causes can be identified and the HR department notified so that enquiries can be made in order to identify actions that may need to be taken, whether or not a diagnosis has been made. In light of the Bennett judgment, it is probably best to err on the side of caution; early intervention can help to reduce the likelihood of developing performance issues, sick leave, disciplinary measures and dismissals. It can, of course, also help to retain valuable employees and demonstrate the employer’s commitment to their welfare.


Implications

This means that those illnesses at paragraph 6 of Schedule 1 automatically confer protection from discrimination on the person in question. It is not the diagnosis that confers that protection. This judgment shows how difficult employers can find it managing employees who have underlying health conditions, of whichever kind.

However, the possibility that the way an employee is treated before an illness is diagnosed, but while it is still present, can be used in a future claim for disability discrimination must be particularly concerning.

It will also affect the duty laid on the employer by the Equality Act 2010 to make reasonable adjustments for disabled employees. Changing the point at which an employee can be classed as disabled will also move the goalposts regarding when such adjustments need to be made.

One thing is certain – employers can’t feign ignorance of employee ill health and disability and hope for the best if claims arise.