Disability Discrimination: Knowledge of Disability

Disability Discrimination: Knowledge of Disability

In a case published last week, the Court of Appeal had said an employer cannot rely solely on an Occupational Health Report when deciding if an employee is disabled. On the face of it this poses problems for employers – if they cannot rely on a medical report, what can they rely on!
 
What employers must be able to show is that, following receipt of the report, they have considered for themselves whether in the fact the employee is disabled.  Lord Justice Rimer said an employer should “pose specific practical questions directed to the particular circumstances… The answers to such questions will then provide real assistance to the employer in forming his judgement as to whether the criteria for disability are satisfied.” The practical questions are questions about how the impairment affects their ability to carry out day to day activities, so “can they walk up stairs?”, “can they lift shopping bags?” and how long the impairment will last, so “have they been affected for the last 12 months? If not, is the impairment likely to last 12 months?”
 
This extra step will protect against a finding that an employer knew an employee was disabled.

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