The Equality Act 2010 makes it unlawful to discriminate against someone on the grounds of a protected characteristic, one of which, is disability. Under the Act, a disability is a physical or mental impairment which has a substantial and long-term impact on the individual’s ability to carry out normal day-to-day activities.
There are a handful of conditions, one of which is cancer, that are a disability regardless of that test. According to the statutory guidance (ref page 10), a person who has one of these illnesses will be protected “effectively from diagnosis”. Considering the wording of that guidance, the case recent case of Bennett v Mitac Europe Limited is worthy of note.
The Claimant was employed as UK Sales Manager under the direct line management of the Respondent’s UK Sales and Marketing Director. It was the UK Sales and Marketing Director who was diagnosed with cancer and who was therefore a disabled person under the Act, making this case somewhat unusual as the Claimant sought to rely on direct discrimination because of the disability of another person. A decision was taken to cease the work done by the UK Sales and Marketing Director and the Claimant, resulting in both being dismissed.
The Claimant made a claim of direct disability discrimination to the Employment Tribunal (ET). In a claim of this nature, the burden of proof initially lies with the Claimant. The Tribunal must consider if there are facts from which it could decide, in the absence of any other explanation, that there had been a contravention of the equality provision concerned. If satisfied that there were such facts, as the Tribunal was in this matter, the burden then shifts to the Respondent to show that it did not contravene the provision. The ET however ultimately held that the Respondent had discharged that burden and was satisfied that they had established that the Claimant was not subject to direct discrimination because of his line manager’s disability. The Claimant appealed to the Employment Appeals Tribunal (EAT).
The EAT allowed the appeal and held that the ET had erred in holding that for a disability such as cancer, deemed or actual knowledge of the disability requires that there must have been a medical diagnosis. The EAT made clear the importance of the distinction between a person having cancer and having been diagnosed as having cancer. It set out as follows:
“If a disability is undiagnosed and unsuspected by the employer it will not be possible for the employer to have discriminated because of it. On the other hand, if a person does have cancer, and the employer believes that to be the case, disability and knowledge can be established before a medical diagnosis has been obtained.“
If we look in greater detail at this particular case, the Claimant’s line manager had been rushed to hospital in April 2018 and had informed management the day after that a growth had been found on one of his kidneys which required a biopsy to get a formal diagnosis. That diagnosis was not confirmed until August 2018, upon receipt of which the Respondent was immediately informed. Given that the growth had been located in April 2018, it would have been highly probable, if not guaranteed, that the line manager did HAVE cancer by this point and so the question becomes one of awareness on the part of the Respondent. However, that was not a question before the EAT and the case has now been remitted back to a fresh ET to consider the date upon which the employer had actual or deemed knowledge of his line manager’s disability and whether the Claimant was discriminated against because of it.
What should we take away from this case? Take professional advice! If ever there was a cautionary tale about heavy reliance on statutory guidance, then here it is. Over the course of the last 35 years, we have helped employers defend in excess of 3,000 tribunal claims. We are not a huge law firm with fees to match, nor are we a solicitor’s practice that prefers to keep clients at arm’s length. We are a long-established consultancy that provides tailored support on HR and Employment Law issues to organisations of all sizes and from all sectors.
If you are an employer and are grappling with an employment issue that involves a potential disability, please do not hesitate to contact us on 01942 727200 and speak to one of our HR consultants for an initial consultation without charge or obligation.