The recent case of Cox and Essex County Fire & Rescue  dealt with a number of questions that we are often asked by employers. Do employees have an obligation to tell their employer if they suffer from a disability? And what happens when an employee refuses to consent to the employer obtaining a medical report?
Mr Cox started working for the Fire & Rescue service in 2007. In a pre-employment medical questionnaire he admitted that he suffered from mild depression and had been prescribed anti-depressants. However, the questionnaire also asked whether he suffered from “any health condition or disability which affects your ability to carry out normal day to day activities” (mirroring the legal definition of disability) and he answered No.
In 2008 Mr Cox slipped at work and suffered a head injury. He had 3 weeks off work and later brought a personal injury claim in relation to the accident.
In 2009 the Fire & Rescue Service began to speak to Mr Cox about concerns with his performance. Mr Cox told his line manager that he was suffering from severe concussion and was receiving cognitive behavioural therapy. He told the head of HR that he was suffering from depression and was referred to Occupational Health. The Occupational Health report advised that Mr Cox was unlikely to meet the definition of disability.
Some months later Mr Cox was suspended in relation to allegations of aggressive behaviour towards his colleagues, which he was advised may lead to his dismissal for gross misconduct. In response, Mr Cox raised three grievances.
Mr Cox then sent an email to his manager advising that he was suffering from bipolar disorder. He was referred back to Occupational Health who said there was no clear diagnosis and sought reports from his GP and specialist. Occupational Health also said that there was little or no prospect of Mr Cox returning to work.
Mr Cox was taking legal advice on his personal injury claim and was advised to refuse consent for his GP and specialist to reply to Occupational Health. His grievances were rejected and, following a disciplinary process, he was summarily dismissed in February 2010. He brought claims for disability discrimination and unfair dismissal.
The employer argued that Mr Cox’s disability had not been known during his employment. An employer is deemed to have knowledge of an employee’s disability if they ‘could reasonably be expected to know’. The Tribunal considered this and found that the Fire & Rescue Service could not have been expected to know. They had taken reasonable steps and had asked the correct questions, but as Mr Cox had declined to reveal the information and there had been no definitive diagnosis, there was no deemed knowledge.
Mr Cox’s claim was therefore rejected and he appealed to the Employment Appeal Tribunal (EAT). The EAT agreed with the Tribunal’s analysis. The fact that Mr Cox had told them he was suffering from bipolar disorder had to be viewed in the context that the medical evidence queried whether this was the case.
Clearly this case involved a very specific set of facts, but there are some useful points we can learn from:
- Employees are not under a legal obligation to tell an employer if they suffer from a disability, but if they do not, this may cause the employee difficulty in establishing that the employer knew or could reasonably be expected to know that they were disabled.
- An employee has the right to refuse to consent to a medical report – but if consent is withheld, an employer can only make a judgement based on the information available to it, so refusal of consent is not necessarily in the employee’s best interests. This is relevant to both unfair dismissal and disability discrimination.
Unfortunately what is not sufficiently clear from the judgment is whether in some situations, even without a definitive diagnosis, the employer still might have sufficient information with which to be deemed to know of a disability. If in doubt, it is always best to take advice – we have years of experience of advising on ill-health and disability issues and would be happy to help.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).