Cox v Essex County Fire And Rescue Service

An employer’s duty to make reasonable adjustments under section 4A of the Disability Discrimination Act 1995 does not arise where it neither knew, nor could reasonably have been expected to know, that the employee was disabled and likely to be disadvantaged. The employer need not know the precise diagnosis, but must have sufficient knowledge of a mental impairment with substantial and long-term adverse effects.

The question of actual or constructive knowledge is fact-sensitive. Reasonable enquiries, including occupational-health referrals and requests for medical information, may be sufficient where the diagnosis remains uncertain and the employee prevents disclosure of medical evidence. An appellate tribunal will not reweigh that assessment unless it discloses an error of law or perversity.

The Employment Tribunal dismissed the claimant’s claims for disability discrimination, unfair dismissal and wrongful dismissal following his summary dismissal for gross misconduct. It later became accepted that he had been disabled by a mental impairment, namely bipolar disorder, at the relevant time.

On appeal, the claimant challenged the Tribunal’s finding that the employer had neither actual nor constructive knowledge of that disability. The employer had observed changed and aggressive behaviour, received the claimant’s assertions about bipolar disorder, and made occupational-health referrals. The medical material available before dismissal did not provide a definitive diagnosis, and the claimant had prevented his GP and specialist from releasing reports. The central issue was whether the Tribunal had erred in, or perversely reached, its finding on the employer’s knowledge.

1. Appeal dismissed. The Employment Tribunal correctly directed itself on the knowledge limitation in section 4A(3) of the Disability Discrimination Act 1995. Its conclusion that the employer neither knew nor could reasonably have been expected to know that the claimant was disabled was a permissible factual conclusion.

2. The employer’s knowledge had to be assessed on the information available when it acted, rather than with hindsight. It had the claimant’s own account of changed conduct and possible bipolar symptoms, but that was self-analysis. The available medical reports recorded bipolar affective disorder only as a possibility or diagnosis under consideration.

3. The employer had made appropriate enquiries. It had referred the claimant to occupational health, asked whether he was likely to be covered by the legislation, requested a definitive psychiatric opinion, and sought information from his GP and treating specialist. Those enquiries did not produce definitive information before dismissal because the claimant had forbidden disclosure of medical reports.

4. The Tribunal was entitled to conclude that the employer had no actual or constructive knowledge of disability. It followed that no duty to consider reasonable adjustments arose. The challenge instead sought to reargue the weight of the evidence, which was for the Employment Tribunal as fact-finder.

5. The decision was careful and fully reasoned. It was neither perverse nor affected by an error of law.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s finding that the employer lacked actual and constructive knowledge of disability was upheld.
• Employment Tribunal: dismissed claims for disability discrimination, unfair dismissal and wrongful dismissal.