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Debt adviser not victim of discrimination

CAB did not know worker had agoraphobia

15 August 2011

A debt adviser who worked at a CAB in Birmingham was not the victim of disability discrimination because her employer did not know she suffered from agoraphobia, the EAT has ruled.

Mr Justice Underhill said an employer was under no duty to make reasonable adjustments under section 4A of the Disability Discrimination Act 1995 when it lacked actual or constructive knowledge that the worker had a disability.

The EAT heard that Miss Wilcox began her career with Birmingham CAB Services at the city centre bureau. The Birmingham CABx cut the salaries of its debt advisers in 2006 and Wilcox said she could no longer afford to park in the city centre.

Giving judgment in Wilcox v Birmingham CAB Services (UKEAT/0293/10/DM), Underhill J said the debt adviser had agreed to a clause in her contract under which she could be required to work at any bureau in the city.

At first she was permitted to work at home part of the time, but the manager who agreed to this had no authority to do so and it was stopped.

At an interview, Wilcox said she could not use public transport to get to the centre of Birmingham because “she got anxious travelling and needed to use her own car”.

However, when she wrote asking to move to a CAB nearer her home, she did not mention her travel anxiety.

Underhill J said a report by a behavioural therapist in 2007 found that Wilcox suffered from anxiety relating to travel and to heights. By 2008, Wilcox told the CABx she was prepared to work only at Handsworth or Kingstanding and the arrangement must be permanent.

She was later referred to occupational health consultants City Doc, but refused to go because they had offices on an upper floor. City Doc produced a report, based on her medical notes, saying there was no evidence of a “psychiatric diagnosis”.

Wilcox resigned in November 2008, claiming disability discrimination and unfair dismissal. It was only when proceedings had been issued in 2009 that she saw a consultant psychiatrist who said she had been suffering from agoraphobia since 2005. In light of this, the CABx conceded that she was disabled.

An employment tribunal found that the CABx did not know and could not have been expected to know that the claimant suffered from agoraphobia before she resigned.

Mr Justice Underhill said the “essence of the tribunal’s reasoning” was that it would be wrong to find “actual or constructive knowledge on the part of the respondent before such time as it should reasonably have obtained authoritative medical advice”.

He went on: “In the end we have concluded that that was a legitimate approach in the circumstances of this particular case.

“It is important not to lose sight of the fact that, while (as we have said above) the statute does not require that the employer should know (actually or constructively) the precise diagnosis of a putative disability, it does require that he should know (actually or constructively) that the employee is suffering from a mental impairment whose adverse effects are both substantial and long term.

“The appellant’s condition was on any view an unusual one, and, without in any way impugning her good faith, it was not easy to disentangle the effects of any mental health condition from the effects of unhappiness about her working conditions more generally.”

Underhill J said the question of what the respondent knew or should be expected to know was one for the factual assessment of the tribunal and “we cannot say its conclusion was perverse”. He dismissed the appeal.

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Discrimination Costs Expert witness