If an employee is or has been unwell, you must determine whether their condition may amount to a disability under the Equality Act 2010.

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This is crucial because employers have a legal duty to provide reasonable adjustments for disabled employees.

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1. Employer’s duty to establish disability

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Under the Statutory Code of Practice on Employment, employers must take all reasonable steps to find out whether an employee is disabled.

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What is “reasonable” depends on the circumstances, but typically includes:

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• discussing the employee’s health concerns,

• reviewing medical evidence (with consent),

• referring the employee to Occupational Health,

• assessing how the condition affects day‑to‑day activities.

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Employers cannot ignore signs that an employee may be disabled.

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2. Dignity, privacy and confidentiality

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When asking about health or disability, employers must:

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• respect the employee’s dignity,

• ensure confidentiality of medical information,

• restrict access to sensitive data,

• avoid unnecessary or intrusive questions.

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Breaching confidentiality can lead to discrimination and data protection claims.

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3. Role of Occupational Health

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A referral to an Occupational Health Practitioner is often the most effective way to determine whether an employee is disabled.

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Occupational Health can:

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• assess whether the condition meets the Equality Act definition,

• recommend reasonable adjustments,

• advise on fitness to work and phased returns,

• help employers avoid procedural mistakes.

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While not legally binding, OH reports carry significant weight in Tribunal proceedings.

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4. Why this matters

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If an employer knew or ought reasonably to have known that an employee was disabled but failed to act, they may be liable for:

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• discrimination arising from disability,

• failure to make reasonable adjustments,

• unfair dismissal,

• breach of duty of care.

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Even unintentional mistakes can result in substantial compensation.

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5. How I help employers

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• advising on how to establish disability status,

• preparing Occupational Health referrals,

• implementing reasonable adjustments,

• drafting disability and absence policies,

• representing employers in disability‑related disputes.