Case Study: Application of the ‘Knowledge of Defence’

In the recent case of Wilcox V Birmingham CAB Services Ltd the Employment Appeal Tribunal discussed an employers liability towards a disabled employee. The argument lay on the basis that if they had no knowledge of the employees condition, the employer could not have known that reasonable adjustment was needed to that employees working conditions.

The employee in this case, made a request to work from home a number of days a week due to the fact that she was agoraphobic and unable to use public transport as it gave her travel anxiety.  She worked for the Birmingham CAB and was subject to work in any of the 5 branches around the city centre. Due to the employees condition she had no option but to drive herself to work and pay the high parking prices for parking in the city centre and extra fuel for travelling to those branches furthest away from their home. This was proving too costly on her income and thus put in the request in February 2007 to work from home a few days each week.

In the request, the employee stated their reasons for the request, however was unable to verify that it was a medical condition of its own or as a result of another. On this basis, her employer rejected her request as there was no substantiating reason for it and advised they sought medical aid for the anxiety.

In May 2007, the employee was asked to expand their remit to include working at another branch further away from their home, which triggered them to be signed off with work related stress. Still no consultation with their GP had taken place to confirm a medical condition, nor did they allow their employer to obtain a medical report. They were later referenced to a therapist who found that the employee did in fact suffer from travel anxiety and fear of heights. It was therefore advised that the employee be allowed to work in a branch close to their home, which was accessible by a short car journey.

Both parties therefore agreed that the employee could work at only 2 branches close to their home; however the employer could not guarantee that this would be a permanent change to their working conditions. The employer made a further offer that should the employee have to travel to another branch further away the employer would arrange for a subsidised taxi rate to be implemented for them. This, however, was not acceptable to the employee.

The employer then arranged for an occupational health examination, however, due to the consulting offices being on an upper floor, the employee refused to attend, and a report was made based upon her medical notes which already stated that there were no medical grounds for the employee’s anxiety or fear of heights. After numerous other reviews which seemed to brand the employee as, amongst other things a liar. This led to the employees self dismissal on the basis that the employer had breached the implied duty of mutual trust and confidence, and further discriminated against her as a disabled worker.

At Tribunal, a joint report was compiled by a joint psychiatrist consultant, who concluded that the psychiatric condition of agoraphobia affected the employee’s mobility thus substantiating her requests for flexible working, and further that the condition was ongoing in order to make the employee disabled under the relevant disability discrimination law. The employee had refused until now to accept that the condition may have been psychological and refused assessments of this nature prior to the Tribunal.

Despite this, the Tribunal found for the Employer in the case, on the basis that there had been so much conflicting evidence, prior to this joint report that the employer had no knowledge as to the employee’s disability prior to the Tribunal hearing, and thus there was no duty to make reasonable adjustment to the employees working arrangements.

No authoritative report had been produced to verify the employees condition and thus no actual or constructive knowledge was deemed to have been had. It was therefore held that no reasonable adjustment needed to be made to the employees working conditions and no discrimination had taken place. The case was therefore dismissed.

Employers should take from this case the fact that knowledge is key in disability discrimination cases, now contained in Schedule 8 of the Equality Act 2010 which states;

“A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know—
(a)in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question;
(b)in any other case referred to in this Part of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement. “

Therefore until knowledge is given to the employer, there is no duty to make reasonable adjustment. This knowledge must be in the form of a conclusive medical report

Published: 28 Sep 2011


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