I think the case you are referring to is Heinz v Kenrick (2000) IRLR 144. This was about an employee who had been off work for nearly a year when he was dismissed for his absence. A diagnosis of Chronic Fatigue Syndrome was confirmed AFTER his dismissal. However the responant, and their OHP, were aware of the SYMPTOMS before the dismissal. Section 5 does not require the employerto have knowledge of the disability AS SUCH. The applicant was sacked for his absence which later was established to be a disability.

This case brought to light the issue of 'employers deemed to know' what we know - even if its only symptoms at the early stages -it  is deemed to be in the domain of the employer - HR and manager. This applies even when confidentiality has restricted the OH professional from revealing the details. Mad I know!! Thats why it is so important to make sure you tell management when you consider DDA is likely to apply and let them consider reasonable adjustments which, after all, is always best practice even where DDA is deemed not to apply.

Further to this, I am just involved at present in a tribunal case re DDA (date is set) where a person with monocular vision was not employed as a fork lift truck driver. Using the standard test for whether DDA applies, I concluded it was unlikely - no significant negative impact on her day to day activities - however new legislation of April 2003 ( I saw her on 5th May) may make her automatically disabled ie Disability (Blind and Partially Sighted) Act. The person had not declared her monocularity and declared nil on her health dec. We did consider employing her on non FLT work however there was nothing suitable available. She had never used FLT before so there was no experiential learning to take into account either. C'est La Vie - need to keep a close EYE on all this new legislation......

Jane.