Liability For Undisclosed Disabilities?

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If an employee fails to disclose their disability to you, can they later claim that they’ve been directly discriminated against?

Mr Mutombo-Mpania (M) applied for a job with Angard (A), a firm which provides casual workers to Royal Mail Group (RMG). M stated that he was not disabled on his application form and didn’t disclose any disability on his health form. Initially M worked late shifts finishing at 10pm. After one year, he was offered and accepted eight weeks of night shifts over the Christmas period.

Before theses shifts commenced, M emailed A stating that his health condition did not allow him to work regular nights shifts and he wanted his shifts to end at 10pm. He didn’t provide any further details but later claimed to suffer from high blood pressure. M ended up working all but four of the night shifts. RMG then told A that they didn’t want M working for them and his engagement was terminated.

M claimed direct disability discrimination i.e. less favourable treatment due to his protected characteristic. The Tribunal noted that unless it knew or ought to have known about a disability an employer can’t be liable for direct discrimination. It can however be found liable for indirect discrimination if it applies a “provision criterion or practice” to its workforce which adversely affects a protected group, e.g. disabled persons. But this wasn’t an issue in this case. M’s claim was rejected by the tribunal and the Employment Appeal tribunal.

Advice

This ruling confirms that an employee cannot successfully claim direct disability discrimination if they withhold information about a disability. The only time this would change is if you ought to have known about it, e.g. because the impairment was obvious from the employee’s physical appearance or sickness absence records.