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Will an employer have knowledge of disability where the employee informs their line manager in a personal conversation outside of the workplace and asks for that information not to be disclosed?

02 September 2021

An employer cannot be liable for direct disability discrimination, discrimination arising from disability or failure to make reasonable adjustments unless it knew, or should have known, about the employee's disability.

The EHRC Employment Code says that "an employer must do all they can reasonably be expected to do to find out if a worker has a disability" (paragraphs 5.15 and 6.19).  An employer cannot claim that it did not know about a person’s disability if the employer’s agent or employee (for example, an occupational health adviser, HR officer or line manager) knows in that capacity of the disability. The EHRC Code makes it clear that such knowledge is imputed to the employer (paragraphs 5.17 and 6.21). Employers therefore need to ensure that where information about disabled people may come through different channels, there is a confidential way to bring that information together to make it easier for the employer to fulfil its duties under the Equality Act 2010 (paragraphs 5.17 and 6.21). The only exception provided in the EHRC Code is where the information is given to a person providing services to workers independently to the employer, such as an independent counselling service, where information will not be imputed to the employer (paragraphs 5.18 and 6.22).

Whether the employer will be deemed to have knowledge of disability in the circumstances described may depend on several things, such as what the employee actually said, the nature of their impairment and the working relationship between the employee and the line manager. For example, if the employee said "I was diagnosed as HIV positive 3 years ago" to the manager they directly report to, this is likely to constitute knowledge, HIV being a deemed disability. Whereas if the employee says "I've been feeling down for a while now", the issue will be less clear cut: it will not be clear from what has been said that the employee is suffering from a disability within the section 6 definition in the Equality Act 2010 without further investigation.

The employer may seek to argue that the knowledge should not be imputed to it as the information was not received by the line manager in their capacity as such, given that it was provided in a personal conversation outside of work. However, we are not aware of any case law that has tested this. In terms of the employee's request for confidentiality, in Hartman v South Essex Mental Health Community Care NHS Trust and other cases [2005] IRLR 293, the Court of Appeal held that if an employee discloses confidential information about their health to their employer's occupational health (OH) provider, the employer should only be deemed to have knowledge of the information actually provided to it by the OH provider. Applying this to the circumstances may provide grounds for the employer to argue that the line manager's knowledge should not be imputed to the employer in circumstances where the information was received in the line manager's personal capacity and has not been passed to anyone else in the business.

However, a court may more readily infer knowledge from a line manager than an OH adviser in circumstances similar to Hartman, given the direct working relationship between a line manager and employee as well as the closer connection between the line manager and employer. The position would likely be different if the employee consents to the disclosure of the information. For instance, the EHRC Code provides an example where an OH adviser becomes aware of a worker's disability that is relevant to the employee's work, the worker consents to this information being disclosed to the employer, but the OH adviser does not pass that information on to HR or to the worker's line manager. The EHRC Code provides that, as the OH adviser is acting as the employer’s agent, it is not a defence for the employer to claim that it did not know about the worker's disability. This is because the information gained by the adviser on the employer's behalf is attributed to the employer (paragraph 5.18).

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