##The background

Ms Donelien was a court officer and was dismissed without notice for her poor attendance. She claimed for a failure to make reasonable adjustments. She accepted there was a policy for poor attendance and she had not passed it but she was arguing that the policy should be relaxed in her case as a reasonable adjustment based on the fact she had a disability. The main issues in this case were whether she had a disability and whether the employer knew this.

She claimed she had a disability for a variety of ailments including stress, anxiety, hypertension, asthma/respiratory problems and dyspepsia which meant it was more likely that she would be absent. Her record of absence included a variety of ailments, some linked to these problems, others more general illnesses.

The employer has liaised with occupational health before dismissing her and had also previously liaised with her GP. The employer had also spoken to her at length. The employer nor the medical people viewed she was disabled.

##Tribunal decision

The Tribunal found that although in their view Ms Donelien was a legally a disabled person within the Equality Act 2010, her employer did not know this and an employer cannot discriminate on the grounds of disability if they do not know or believe (or perceive) that person to be disabled.

Ms Donelien argued that she was disabled and the employer should have known that. The EAT stated that whether she was legally disabled as an employee for equality purposes or not was a matter for the employer (rather than the medical experts) to decide - although the employer was expected to get medical assistance to determine this.

The EAT viewed that the employer genuinely did not know she was disabled and had taken all sufficient steps to establish whether she was including reviewing the documentation, speaking to her and speaking to two medical advisers. In their view therefore, discrimination cannot have happened if the employer was not aware of the protected characteristic.

##What this means for you

If you do not believe or know or perceive the employee is disabled then you cannot be liable for discrimination towards them. However, if you ought to have known they were disabled you can be liable.

In these circumstances, a Tribunal will support you in concluding that an employee is not disabled (even if they legally are) if you have met with and spoken to the employee and considered medical evidence – in particular from a variety of sources such as an Occupational Health report but also from a GP. There has been a previous case where the employer relied too heavily on one medical opinion and therefore were criticised and found that they ought to have known about the disability in that case. In this one, the employer had considered a variety of sources and fairly reached their conclusion.

These are steps you would have to follow in order to fairly dismiss for capability in any event so if you are to argue that you did not realise there was a disability you do need to ensure you can back this up robustly with good reason.

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