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With the most common forms of disability discrimination, an employer cannot discriminate unless they knew, or should have known, about the employee’s disability.

However, a recent case has raised an interesting question. If the employer did not know of the employee’s disability until their appeal hearing, after the decision to dismiss had taken place, could the dismissal still be discriminatory? You may be surprised to hear that the answer was a clear yes.

In this case, the employer tried to argue that the employee’s dismissal could not have been discriminatory because the employer had no knowledge of the disability at the date of the actual dismissal. The employer did not find out about the disability until the employee’s appeal.

However, the Employment Appeal Tribunal (“the EAT”) did not accept the employer’s argument. Instead, the EAT found that an appeal is an integral part of any decision to dismiss. The decision to dismiss is ongoing throughout any appeal process, as the appeal is a review of that decision and one outcome of the appeal could be a different decision. Therefore, when the EAT considered whether the employer had knowledge of the employee’s disability, it was relevant to consider what the employer knew, or ought to have known, right up to the point it makes its decision on the employee’s appeal. The EAT explained this decision by stating that an employee shouldn’t be penalised just because they were unable or unwilling to mention their disability or symptoms until the appeal stage.

So, what can we learn from this case? If you suspect at any stage in a process with an employee that they may have a disability, then you should show caution. Consider the additional risk of a disability discrimination claim to protect your business.

Remember this does not necessarily mean that the employee has to have expressly told you they have a disability. It is possible for a tribunal to find that you had constructive knowledge of the disability. That means that on the information available to you, you ought to have known they had a disability.

If you have any questions on this article, or if you face any potential issues of disability discrimination or need assistance with any dismissals, or any other area of employment law or HR, please contact Rob Tice on 01332 866610 or email at rob.tice@precepthr.com.