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Evidence of disability

The Employment Appeal Tribunal in the case of Mutombo – Mpania v Angard Staffing Solutions Ltd has considered the burden of proof on an employee to provide evidence of the day to day activities affected by a medical condition as well as whether an employer could reasonably be expected to know that an employee had a disability if the employee denied having one.

Background

When the Claimant started work at Angard Staffing Solutions Ltd (“the Company”) in 2015 he indicated that he did not consider himself to have any disability and no mention of any health condition was made on the recruitment forms.

During November and December 2016, the Claimant did not attend work on four separate occasions and said that his “health condition” prevented him from working regular night shifts. The Claimant was diagnosed with high blood pressure and suffered from headaches, fatigue and breathing problems.

The Claimant was dismissed and he brought a claim for disability discrimination.

The Law

Under section 6 of the Equality Act 2010, a person has a disability if they have “a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day to day activities”.

Decision

A preliminary hearing took place to determine whether the Claimant was disabled under the Equality Act 2010. The Employment Tribunal held that the Claimant had not provided sufficient evidence and therefore had not discharged the burden of proof on him to show that his condition had a substantial adverse effect on his ability to carry out day to day activities.

The Employment Tribunal also considered whether the Company knew or could reasonably be expected to know that the Claimant had a disability. It held that as the Claimant had indicated that he did not have a disability on the recruitment forms, the Company had no express knowledge. The Employment Tribunal further held that the Company did not have constructive knowledge of any disability but went on to say that it should have made enquiries and obtain further information about the Claimant’s health condition.

The Employment Appeal Tribunal dismissed the appeal made by the Claimant and upheld the Employment Tribunal’s decision.

Comment

Although the burden of proof is on the employee to demonstrate they have a disability satisfying the legal test in the Equality Act 2010, this case shows that the tribunal will also look to see if any constructive knowledge can be inferred on the employer. Although the tribunal found this employer had neither express or constructive knowledge on these facts, the tribunal highlighted that the employer should have made investigations when the Claimant made comments about his “health condition”.

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