A landmark case titled, Cox v Essex County Fire and Rescue Service, was able to shed light on how much knowledge employers are expected to possess in order to conclude that an employee is or is not disabled.
Cox was employed as a deputy finance director by a company called Essex Fire Service. It was during the recruitment process that Cox disclosed that he suffered from mild depression and that it was being treated with anti-depressants. At the same time, Cox explained that while he suffered from depression he didn’t have any conditions that would disable him from carrying out normal daily activities.
In September 2008 Cox fell down a small flight of stairs at work and injured himself. He spent a three-week period at home and began personal injury proceedings against his employer. About one year after the accident, Cox told his employer that he visited a counsellor to help deal with the effects of the concussion and the severe depression that began as a result of the accident. Cox was referred to the employer’s occupational health service that confirmed it was highly unlikely he had a disability under the relevant statutory definition.
Cox was suspended pending an investigation into his behaviour. In September 2009, Cox informed his employer that he had been suffering from bipolar disorder for about three months. A psychiatrist considered that his accident may have actually amounted to a “hypomanic episode”. It was at this point that the employer began to request medical reports from Cox’s GP in order to ascertain whether the bipolar disorder was an, ‘active diagnosis’.
At the advice of his personal injury lawyer, Cox withdrew his consent for his GP and his consultant to disclose any medical condition. Having conducted their own investigation, the employer dismissed a series of grievances raised by Cox and ended up dismissing him for gross misconduct.
Cox brought a claim for disability discrimination, arguing that his employer had failed to make reasonable adjustments and claimed for unfair dismissal. The tribunal held that Cox prevented a definitive diagnosis by refusing to disclose the relevant medical information to the employer, which prevented them from recognising the true nature of the condition. Since there wasn’t a definitive diagnosis, the employer would have no way of concluding whether he was or was not disabled.
The Employment Appeal Tribunal stated that for an employer to have the requisite knowledge that an employee is disabled, it would need to have an actual active diagnosis. In this case, the employer could only rely on Cox’s diagnosis. Therefore the appeal was dismissed.
This case reinforced the notion that employers are not held responsible for any kind of adjustments if they do not know an employee is disabled.