To receive protection from disability discrimination, an employee must be ‘disabled’ in the legal sense of the word under the Equality Act 2010.

That is, they must have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Whether an employee has a disability or not is a question that is often answered by Occupational Health advisers and GPs. Most conditions must be shown to meet the definition above, while certain conditions are automatically deemed to be disabilities, such as blindness, MS, cancer and HIV.

Most forms of disability discrimination protection under the Equality Act only apply where the employer has actual knowledge of the employee's disability or constructive knowledge (i.e. where the employer could reasonably be expected to know about the disability). The possibility of constructive knowledge means that employers cannot simply rely on what advisers tell them, but should take reasonable steps and have systems in place to investigate potential disabilities.

In the recent case of Toy v Chief Constable of Leicestershire, the Claimant was a police officer who thought that he was disabled because he had dyslexia. He claimed direct disability discrimination, discrimination arising from disability and a failure to make reasonable adjustments, on the grounds that his employer had failed to consider his disability when dismissing him for poor performance during a probationary period for a new role. On appeal, the judge held that the employer did not know and could not reasonably have been expected to know that the Claimant suffered from dyslexia at the time of dismissal, as the mere possibility of dyslexia was only raised during the termination process. Further, the Claimant was ‘not clear or certain that he was dyslexic’ at any point and the most he had said was that it was possible that he might be dyslexic.

This decision is particularly interesting considering other recent cases that have shown that employers do not need take every step possible, but must make meaningful attempts to determine whether an employee has a disability to avoid having constructive knowledge. Here, the employer did not make any efforts to investigate a potential disability. However, in Toy, a contributing factor to the lack of constructive knowledge was that the prospect of the Claimant having dyslexia had never previously arisen in his training or work. It was only raised during the termination process and, even then, without any certainty or evidence. Had the employer been given a stronger indication of dyslexia, there would likely have been a higher risk of constructive knowledge.

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