The EAT has recently held in Bennett v MiTAC Europe Limited that an employee with cancer will be disabled under the Equality Act 2010 from the date on which they fell ill, and not from the date on which the cancer was diagnosed.
Mr Bennett claimed associative direct discrimination when he was dismissed at the same time as his manager, Mr Balaam, who had cancer. His claim was unsuccessful and Mr Bennett appealed to the Employment Appeals Tribunal (EAT).
On the point of disability, the EAT found that the Tribunal had erred in holding that for a disability such as cancer, deemed or actual knowledge required that there had been a medical diagnosis. The EAT noted that it was important to distinguish between a person having cancer and a person being diagnosed as having cancer, in relation to the employer’s date of knowledge of disability. The former is protected by the provisions of the Equality Act 2010 and whilst someone might have an evidential problem proving they have cancer without a diagnosis, they are nonetheless protected as a disabled person.
It went on to state that where a disability is undiagnosed and unsuspected by the employer it will not be possible for the employer to have discriminated because of it. However, for example where someone has cancer, and the employer believes that to be the case, disability and knowledge can be established before a medical diagnosis has been obtained.
What this means for employers
Clearly there are limited circumstances in which an employer ‘believes’ an employee to have a certain condition, however it is relatively common that employees present with symptoms prior to a diagnosis of any potential long term condition. Indeed, whether an employee was disabled at the material time and whether an employer has knowledge of this, is often the focus of cases that reach the Tribunal.
Key takeaway points for employers are:
- An employer will have knowledge of disability if it ought reasonably to have known the employee might be disabled (given the employee’s obvious state of health).
- If an employee is exhibiting symptoms, an early referral to occupational health is advisable.
- An employer is expected to carry out reasonable enquiries into an employee’s ill health and cannot blindly rely on occupational health advice.
- Managers should be urged to investigate any underlying causes for performance or conduct concerns, and provide the appropriate support, regardless of whether a disability is known/diagnosed.
For more information please contact a member of the Employment Team.