[moomin007]

Does an employee have to formally inform his employer of a disability in order for them to use it in an appeal against dismissal?
I have an employee who is claiming unfair dismissal under the DDA but he has never informed us that he is disabled.
I've looked at various gov websites but they all relate to people's rights and I can't find any help on this.

Any thoughts or help?
Thanks
Moomin

[iAMfromHuntersBar]

Would the employer know otherwise about the disability? I.E. without being informed?

If not, then I doubt it, the claimant would be trying to say that the employer was dismissing them for a condition they had no clue about!

I'd especially doubt it if the employee has a contract / employment questionnaire that specifically asks if the employee has any disabilities and they haven't opted to tell them.


I'm no expert on this, but that's just the way I would interpret it... any chance of further info, or is it sensitive?

[Curlyben]

Basically yes.
If the disability isn't obvious, like blindness, etc, then if they are relying on this as a defence to dismissal they MUST of informed HR dept of it, especially if it is likely to affect their work.
Now I assume that proper procedure was followed with warnings, both wrotten and verbal.
Now if this IS the case why wasn't this "disability" brought up earlier?

Ps Being Brain Dead isn't classed as a diability, just look at some senior managers ;)

[iAMfromHuntersBar]

**EDIT** I've just re-read your question and noticed that it's the other way around, I.E. you're the employer! Sorry, it's early! Lol! I'm sure you could still talk to the CAB about this though! **/EDIT**

From the DDA itself;

(2) It is unlawful for an employer to discriminate against a disabled person whom he employs-

(a) in the terms of employment which he affords him;
(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;
(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or
(d) by dismissing him, or subjecting him to any other detriment.

And

5. - (1) For the purposes of this Part, an employer discriminates against a disabled person if-

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified.

So the way I understand that is you actually have to be dismissed as a direct result of your disability, or the effects of your disability for it to be disability discrimination.

Again, I'm no expert, this is just my view, you could always go and see the Citizens Advice Bureau for free advice about it?

[moomin007]

Thanks guys.
He was dismissed (basically) because he couldn't do the jobs we asked. We gave himm support, new products to help, remote support over the phone as well as site visits etc .We followed procedure with warnings etc. he appealed at the time to me but now has got an external body involved and is using his 'disability' as a reason.
This was not the case and has never been raised by him at any point in the past.

[Curlyben]

So this is the FIRST time you have heard about this "disability" then.
Make sure that all the documentation you have regarding this is squeaky and he won't have a leg to stand on.

Just out of interest can you tell us what disability they are trying to claim and do they have any medical back up of this condition?

[moomin007]

That's what I'm trying to 'glean' out of him!
At the moment, I can only assume that it's a learning difficulty of some type as he is NOT physically disabled. He can do all aspects of the job he was employed to do, (stairs, lifting loads, reading instruction etc) he just couldn't do them to the agreed standards despite intervention & support.. to the point where the client was unhappy.

[Curlyben]

Sounds like you already have a case iron defense for his actions then.

[moomin007]

Thanks for the input CB!
Moomin

[Curlyben]

Sorry I forgot to say that I'm not legally trained just a well versed layman in employment and consumer law.

Obviously your company does need to seek legal advice, but I hope I have offered some insight.

[iAMfromHuntersBar]

Again, from the DDA

1. - (1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

So if he was going about his daily stuff, he's not 'Disabled' as part of the act!

I wouldn't fret!

[moomin007]

Cheers Hunters!