Once an employer knows (or reasonably ought to know) that one of its employee’s is a disabled person within the meaning of the Equality Act 2010, the employer is under a statutory duty to make reasonable adjustments to ensure that the employee is not placed at a ‘substantial disadvantage’ in comparison to those people who are not disabled pursuant to s.20(3) & s.39(5) of the Equality Act 2010. The key here is to ask yourself whether your employer is aware that you have a disability? If not, then make sure you inform the employer in your grievance letter that you have a disability/impairment.
Sometimes, the employer will argue that it did not know the employee had the disability. In the authority of McCubbin v Perth & Kinross Council UKEATS/0025/13/BI, the employer argued that it did not know of the claimant’s disability. However, the Tribunal disagreed. The Tribunal said this –
“(1) Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out? If the answer to that question is “no” then there is a second question; namely-
(2) Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out?”
Thus, an employer must do all it can to determine whether or not the employee has a disability. This position is outlined within The Statutory Code of Practice on Employment 2011 –
Chapter 5 Paragraph 5.15:
“It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’.”
Chapter 5 Paragraph 5.17:
“If an employer’s agent or employee (such as an occupational health adviser or a HR officer) knows, in that capacity, of a worker’s or applicant’s or potential applicant’s disability, the employer will not usually be able to claim that they do not know of the disability, and that they cannot therefore have subjected a disabled person to discrimination arising from disability.”
Chapter 5 Paragraph 5.18:
“Therefore, where information about disabled people may come through different channels, employers need to ensure that there is a means – suitably confidential and subject to the disabled person’s consent – for bringing that information together to make it easier for the employer to fulfil their duties under the Act. Example: An occupational health (OH) adviser is engaged by a large employer to provide them with information about their workers’ health. The OH adviser becomes aware of a worker’s disability that is relevant to his work, and the worker consents to this information being disclosed to the employer. However, the OH adviser does not pass that information on to Human Resources or to the worker’s line manager. As the OH adviser is acting as the employer’s agent, it is not a defence for the employer to claim that they did not know about the worker’s disability. This is because the information gained by the adviser on the employer’s behalf is attributed to the employer.”
An ‘omission’ by the employer to make reasonable adjustment/s may well amount to a contravention of s.21(1)(2) & s.39(5) EqA 2010.
Potentially, it may also amount to breach of its duty of care.
Furthermore, it may give rise to the employee claiming “breach of contract”. This could also amount to an employer’s failure to observe the mutual trust and confidence between employer and employee.
Thus, if your employer knows you have a disability (or reasonably ought to know that you have a disability) then it is incumbent upon your employer to undertake a ‘proper assessment’ of you disability ‘in consultation with you’ to identify the reasonable adjustments, which you need-
Tarbuck v Sainsburys Supermarkets Ltd  IRLR 664 paragraphs 69 & 72:
 “There can be no doubt that any employer would be wise to consult with a disabled employee in order to be better informed and fully acquainted of all the factors which may be relevant to a determination of what adjustment should reasonably be made in the circumstances. If the employer fails to do that, then he is placing himself seriously at risk of not taking appropriate steps because of his own ignorance. He cannot then pray that ignorance in aid if it is alleged that he ought to have taken certain steps and he has failed to do so. The issue for the Tribunal will then be whether it was reasonable to take that step or not.”
 “Accordingly whilst, as we have emphasised, it will always be good practice for the employer to consult and it will potentially jeopardise the employer’s legal position if he does not do so- because the employer cannot use the lack of knowledge that would have resulted from consultation as a shield to defend a complaint that he has not made reasonable adjustments- there is no separate and distinct duty of this kind.”
For a list of legally recognised disabilities, click here
“Reasonable and Practicable Steps”
The employer shall take [reasonable and practicable steps] to ensure its employees’ health and safety whilst at work.
Section 2(1) of the Health and Safety At Work Act 1974: “It shall be the duty of every employer to ensure, so far as is ‘reasonably practicable’ the health, safety and welfare at work of all his employees.”
Let’s break down the above sentence, and see what it is actually stating.
The employers “relevant duty” is to “ensure” as is “reasonably practicable” the “health”, “safety” and “welfare” of his employees’.
A contravention of the HSWA 1974, may potentially amount to a breach of the contract of employment.