Can an employer be held culpable for discriminating against an employee if it was unaware of the claimant's disability?

Under the Equality Act 2010, an employer will not be liable for discrimination arising from disability where the employer "did not know, and could not reasonably have been expected to know" that the disabled person concerned had the disability (s.15(2)). The Employment statutory code of practice states that an "employer must do all [it] reasonably can be expected to do to find out if a worker has a disability".

Paragraph 20 of sch.8 to the Equality Act 2010 provides, in effect, that an employer is not subject to the duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know:

  • in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question; or
  • that an employee has a disability and is likely to be placed at the disadvantage referred to in the requirement to adjust a provision, criterion or practice; adjust a physical feature; or provide an auxiliary aid.

Under the Equality Act 2010, liability may arise if an employee or applicant is directly discriminated against or harassed because he or she (or a person with whom he or she associates) either has, or is wrongly perceived to have, a disability. Harassment may also occur if the unwanted disability-related conduct is directed at a third party, rather than the complainant.

The Act does not stipulate any requirements as to knowledge in relation to indirect discrimination but it may be reasonable to assume that liability will not arise if the employer did not know and could not reasonably be expected to know of the employee's disability or the consequential potential adverse effect. However, this is yet to be explored in case law.