The next step

The EAT's ruling

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Undisclosed disabilities and discrimination claims

Invisible disabilities

Whilst some disabilities will be obvious, many others are invisible or hidden. For example, it might not be apparent that an individual is living with a particular type of cancer, has severe diabetes or hypertension.

Equally, a mental health condition, such as depression or anxiety, may not be evident. This often happens where the individual takes medication for their condition.

Post-dismissal claims

In these situations, unless an employee voluntarily discloses the fact that they have a disability, or a condition which could amount to a disability, you will have no knowledge of their disability.

Let’s suppose that you decide to dismiss that same employee due to their poor performance and they subsequently allege that this is an act of disability discrimination . Will they have solid grounds to bring this claim at the tribunal?

Dismissal upheld

This is exactly what happened in the case of Stott v Ralli Ltd 2021 . Stott (S) had been employed as a paralegal by Ralli (R), a firm of solicitors, but was dismissed during her probationary period due to poor performance.

Following her dismissal, S informed R that she had long-term anxiety as well as depression and this had been the cause of her poor performance. As R had not known about this previously, it stood by its dismissal decision.

From day one

Without two years’ continuous employment, S couldn’t claim unfair dismissal, but she could try to claim for disability discrimination as this is a day one right. R defended this claim on the basis that it had no knowledge of S’s disability at the time it dismissed her and the tribunal rejected S’s claim for this reason.

Over to the EAT

The matter then went to the Employment Appeal Tribunal (EAT). It has now confirmed that the tribunal was right to reject the disability discrimination claim as R did not actually know, and importantly, could not have reasonably known, about S’s disability when it decided to dismiss her (see The next step ). This EAT ruling is good news for employers and binding on the tribunal.

Tip. You can refer to this EAT ruling if an employee alleges disability discrimination post-dismissal yet you had no knowledge of their disability at the time you dismissed them.

Tip. However, once an employee or former employee brings a disability to your attention, they are automatically protected from disability discrimination going forward. That means you must have regard to their condition and make all adjustments for them which are reasonable. Also, remember that an employee doesn’t have to spell out their disability to you - it could be brought to your attention via information on a fit note or because they’ve disclosed a diagnosis, e.g. cancer.

For the EAT’s ruling in this case, visit https://www.tips-and-advice.co.uk , Download Zone, year 23, issue 21.